Financial Statements and Other Reports Sample Clauses: 3k Samples

Appears in 3 contracts

Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)

Financial Statements and Other Reports. ~~Deliver~~ In the case of the Company and the other Borrowers, maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in accordance with GAAP and to provide the information required to be delivered to the Lenders hereunder, and will deliver to the Administrative Agent ~~for prompt further distribution by the Administrative Agent~~ which shall furnish to each ~~Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Lender: (1a) as soon as practicable and in any event within ~~ninety~~ (90x) prior to a Qualified IPO and prior to the fiscal quarter ending March 31, 2022, 90 days (y) prior to a Qualified IPO and from and after the fiscal quarter ending March 31, 2022, 60 days and (z) after a Qualified IPO, 45 days, in each case after the end of each ~~fiscal year~~ of the ~~Borrower,~~ first three fiscal quarters of each Fiscal Year of Rivian Parent (commencing with the fiscal ~~year ending December~~ quarter ended March 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower2021), setting forth in each case in comparative form ~~the~~ figures for the corresponding periods of the previous Fiscal Year (which requirement to set forth comparative form figures shall commence with the fiscal ~~year~~quarter ended March 31, ~~in reasonable detail and all prepared in accordance with GAAP~~2022), audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) a consolidated balance sheet of Rivian Parent as at the ~~impending maturity~~ end of such quarter and the ~~Facilities,~~ related income statement and statement of cash flows and (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with ~~September~~ the fiscal quarter ending June 30, ~~2024~~2021, a consolidated balance sheet of the ~~Borrower~~ Company and its ~~Subsidiaries as at the end of such fiscal quarter,~~ consolidated subsidiaries and the related income statement (~~a) consolidated statement of operations for such fiscal quarter and for the portion~~ which shall be certified by a Financial Officer of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements Company as presenting fairly ~~present~~ in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the ~~Borrower~~ Company and its ~~Subsidiaries~~ consolidated subsidiaries on a standalone basis), in each case, for such quarter, and for the ~~most recently~~ portion of the Fiscal Year ended ~~measurement period for which financial statements have been delivered pursuant~~ at the end of such quarter, and prior to ~~Section 6.01(1)~~ a Qualified IPO and ~~Section 6.01(2), at a date and time to be determined by Borrower in consultation~~ commencing with the ~~Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance~~ fiscal quarter ending March 31, 2022, along with a management discussion and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information analysis of the ~~Borrower~~ Company and its ~~Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or~~ subsidiaries for such ~~Parent Company’s Form 10-K or 10-Q~~quarter, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains all in reasonable detail and certified by a Financial Officer as fairly presenting in all material respects the ~~differences between the information relating to such~~ financial condition and results of operations of Rivian Parent ~~Company~~ and its ~~Independent Assets or Operations~~subsidiaries and as having been prepared in accordance with GAAP, ~~on the one hand,~~ subject to changes resulting from audit and other year-end adjustments and the ~~information relating~~ absence of footnote disclosures; (b) as soon as available and in any event within (x) prior to a Qualified IPO, 120 days and (y) after a Qualified IPO, 90 days after the ~~Borrower~~ end of each Fiscal Year of Rivian Parent (commencing with the Fiscal Year ended December 31, 2021), setting forth in each case in comparative form figures for the previous Fiscal Year, (i) a consolidated and consolidating balance sheet of Rivian Parent and its consolidated subsidiaries as of the end of such Fiscal Year and the related consolidated ~~Subsidiaries on a stand-alone basis~~statements of operations, ~~on the~~ members’ equity and cash flows for such Fiscal Year, certified by Deloitte or other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent ~~registered~~ public ~~accounting firm~~ accountants of nationally recognized standing or ~~another accounting firm~~ reasonably acceptable to the Administrative ~~Agent, which report~~ Agent and ~~opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will~~ shall not be subject to any qualification as to ~~the scope of such audit (but may contain~~ Rivian Parent’s ability to continue as a “going concern” or ~~like~~ scope of the audit, other than any such qualification resulting from or relating to (A) an actual or potential breach of a financial covenant hereunder or under any Permitted Additional Indebtedness Document, (B) an upcoming maturity date of Debt occurring within 12 months of such audit or (C) activities, operations, financial results or liabilities of Unrestricted Subsidiaries and (ii) an unaudited consolidated balance sheet of the Company as of the end of such Fiscal Year and its consolidated subsidiaries and the related income statement, which shall be certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated subsidiaries on a standalone basis; (c) if any Unrestricted Subsidiary exists, concurrently with each delivery of financial statements under Section 5.01(a) or (b) above, financial statements (in substantially the same form as the financial statements delivered pursuant to Section 5.01(a) or (b) above, as applicable) prepared on the basis of consolidating the accounts of the Company and its Restricted Subsidiaries and treating any Unrestricted Subsidiaries as if they were not consolidated with the Company, together with an explanation of reconciliation adjustments in reasonable detail; (d) together with each delivery of financial statements pursuant to Sections 5.01(a) and 5.01(b) a Compliance Certificate in the form of Exhibit E (which shall set forth reasonably detailed calculations of Liquidity, Consolidated EBITDA and the Fixed Charge Coverage Ratio (whether or not a Compliance Period is then in effect)); provided that, (x) with respect to any period prior to the occurrence of the FCCR Covenant Trigger, if for such period the Fixed Charge Coverage Ratio would be less than zero, then the Compliance Certificate may certify that the Fixed Charge Coverage Ratio is ~~due~~ less than zero in lieu of reasonably detailed calculations of the Fixed Charge Coverage Ratio for such period and (y) with respect to any period after the occurrence of the FCCR Covenant Trigger, the Compliance Certificate shall not include a calculation of Liquidity; provided further that, with respect to the fiscal quarter end upon which the FCCR Covenant Trigger occurs, the Compliance Certificate for such fiscal quarter shall certify that the FCCR Covenant Trigger has occurred; (e) promptly upon their becoming available, copies of all financial statements and regular, periodic or special reports which such Person may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority; (f) promptly upon any Responsible Officer of the Company or any of the Restricted Subsidiaries obtaining knowledge thereof, notice of (i) the ~~impending maturity~~ existence of any Event of Default or Default or (ii) the institution of any litigation or arbitration which could reasonably be expected to have a Material Adverse Effect in the reasonable judgment of such Responsible Officer or (iii) the occurrence of any other event that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (g) except to the extent such activities could not reasonably be expected in the reasonable judgment of such Responsible Officer to result in a Material Adverse Effect, promptly upon any Responsible Officer of the ~~Facilities~~Company or any of the Restricted Subsidiaries obtaining knowledge of any complaint, order, citation, notice, request for information or other written communication from any Person alleging any Environmental Liability of the Company or any Restricted Subsidiary, a certificate of a Responsible Officer specifying the nature and estimated Liability of any such matter, or specifying the notice given or action taken by such holder or Person, and what action the applicable Loan Party has taken, is taking or proposes to take with respect thereto; (h) on or before the required date for delivery of financial statements pursuant to Sections 5.01(a) and 5.01(b), a written certification from a Responsible Officer of the Borrower Representative which describes, in such detail as the Administrative Agent shall reasonably require, with respect to each Loan Party during such fiscal quarter, acquisitions of interests in Material Real Property; (i) on or prior to the date financial statements are delivered pursuant to clause (b) above, the Borrowers’ and the Company’, as applicable, annual operating plans, including income statements, balance sheets and cash flow projections for the following fiscal year, all of which shall be in a format reasonably consistent with the projections provided to the Lenders prior to the Effective Date; provided that this paragraph (i) shall only apply until the later of (x) consummation of a Qualified IPO and (y) the delivery of the documents required pursuant to this paragraph (i) with respect to the fiscal year ending 2022; (j) within 20 days after the end of each month (or, if such day is not a Business Day, the immediately succeeding Business Day) or, during any Cash Dominion Event, within 3 Business Days after the end of each week, a Borrowing Base Certificate, as at the end of such month or week, as applicable, duly certified by a Financial Officer of the Borrower Representative; provided, that, to the extent not otherwise previously received by Administrative Agent, after the end of any Cash Dominion Event, Borrower Representative shall promptly deliver (but in any event within 20 days after the end of such Cash Dominion Event) a Borrowing Base Certificate as at the last day of the most recent month ended prior to the end of such Cash Dominion Event; provided, further, that (x) at any time after the Effective Date the Borrower Representative may deliver one or more updated Borrowing Base Certificates at any time for the sole purpose of adding Eligible Real Property to the Borrowing Base and (y) the Borrower Representative may elect to deliver a Borrowing Base Certificate more frequently than otherwise required in this clause (j), which increased frequency shall last for at least 60 consecutive calendar days following the initial delivery thereof (it being understood, for the avoidance of doubt, that nothing in this proviso shall limit any of the foregoing requirements of this clause (j)); provided further that, prior to the occurrence of the FCCR Covenant Trigger, each Borrowing Base Certificate shall be accompanied by a reasonably detailed calculation of Liquidity duly certified by a Financial Officer of the Borrower Representative; (k) as soon as available but in any event within 30 days of the end of each calendar month and at such other times as may be requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent (provided that such information relating to Equipment shall only be required prior to the occurrence of a Fixed Asset Release Event): (i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date (with an indication of payment terms by invoice), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name and balance due for each Account Debtor; (ii) a schedule detailing the Borrowers’ Inventory, in form satisfactory to the Administrative Agent, by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a first-in, first-out basis) or market and adjusted for Reserves as the Administrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate; (iii) a schedule detailing the Borrowers’ Equipment acquired or disposed of since the previous schedule delivered to the Administrative Agent pursuant to this Section 5.01(k)(iii), in form satisfactory to the Administrative Agent, by location (showing Equipment in transit and any Equipment located with a third party under any consignment, bailee arrangement, or warehouse agreement), which Equipment shall be valued at the lower of cost or market and adjusted for Reserves as the Administrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate; (iv) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts, Eligible Cash, Eligible Credit Card Receivables, Eligible Inventory and Eligible Machinery and Equipment, such worksheets detailing the Accounts, Credit Card Receivables, Inventory and Equipment excluded from Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory and Eligible Machinery and Equipment, respectively, and the reason for such exclusion; (v) a reconciliation of the Borrowers’ Accounts, Inventory and Equipment between (A) the amounts shown in the Borrowers’ general ledger and financial statements and the reports delivered pursuant to clauses (i), (ii) ~~any anticipated inability to satisfy the Financial Covenant or~~ and (iii) ~~except~~ above, and (B) the amounts and dates shown in the ~~case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be~~ reports delivered pursuant to ~~Sections 6.01(1~~clauses (i), (ii) and (iii) above and the Borrowing Base Certificate delivered pursuant to clause (j) above as of such date; (vi) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement; and (vii) a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file acceptable to the Administrative Agent; (i) upon request by the Administrative Agent (it being understood and agreed that no such request may require any such field examinations more frequently than once in any period of 12 consecutive calendar months except that (A) during an Appraisal and Field Examination Event, and (B) during the continuance of an Event of Default, the Administrative Agent may require in its Permitted Discretion additional field examinations at the Borrowers’ expense), a field examination with respect to the Loan Parties’ Accounts, (ii) upon request by the Administrative Agent (it being understood and agreed that no such request may require any such appraisal more frequently than once in any period of 12 consecutive calendar months except that (A) during an Appraisal and Field Examination Event, the Administrative Agent may require in its Permitted Discretion one (1) additional appraisal of Inventory and one (1) additional appraisal of Equipment, and (B) during the continuance of an Event of Default, the Administrative Agent may require in its Permitted Discretion additional appraisals at the Borrowers’ expense), an appraisal of the Inventory of the Loan Parties and an appraisal of the Equipment of the Loan Parties (which, for the avoidance of doubt shall be two separate appraisals), in each case which appraisal is conducted by an independent appraiser selected or approved by the Administrative Agent, conducted in such a manner and methodology and of such a scope as is reasonably acceptable to the Administrative Agent; the results of which are reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and Lenders are expressly permitted to rely, and (iii) such other reports as to each Borrower’s and each of its respective Restricted Subsidiaries’ accounts payable and other Collateral as the Administrative Agent shall reasonably request from time to time (it being understood that if any of the records or reports of the accounts payable or Collateral are prepared by an accounting service or other agent, the Borrowers hereby authorize such service or agent to deliver such records, reports and related documents to the Administrative Agent, for distribution to the Lenders); (m) with reasonable promptness, copies of any material notices (other than operational notices) or ~~6.01(2) shall~~ reports provided pursuant to any Permitted Additional Indebtedness Document not ~~be required to contain all purchase accounting adjustments relating~~ otherwise provided to the ~~Transactions~~ Administrative Agent under this Section 5.01; (n) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; and (o) with reasonable promptness, such other ~~transaction(s) permitted hereunder~~ information and data with respect to the ~~extent it is not practicable~~ operations, business affairs and financial condition of any Loan Party or Restricted Subsidiary as from time to ~~include any such adjustments in such financial statements~~time may be reasonably requested by the Administrative Agent.

Appears in 3 contracts

Sources: Credit Agreement (Rivian Automotive, Inc. / DE), Credit Agreement (Rivian Automotive, Inc. / DE), Credit Agreement (Rivian Automotive, Inc. / DE)

Financial Statements and Other Reports. ~~Deliver~~ The Company covenants that it will deliver to Purchaser so long as Purchaser's Percentage Interest exceeds 10%: (i) as soon as practicable and in any event within 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, a consolidated statement of income and a consolidated statement of cash flow of the Retained Companies for the period from the beginning of the then current fiscal year to the ~~Administrative Agent~~ end of such quarterly period, and a consolidated balance sheet of the Retained Companies as of the end of such quarterly period, setting forth in each case in comparative form figures for ~~prompt further distribution~~ the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by the ~~Administrative Agent to each Lender~~ principal financial officer of the Company as presenting fairly, in accordance with GAAP applied (except as specifically set forth therein) on a basis consistent with such prior fiscal period, the information contained therein, subject to ~~the limitations on distribution~~ changes resulting from year-end closing and audit adjustments; provided, however, that delivery pursuant to clause (iii) below of ~~any such information to Public Lenders as described in Section 6.02) each~~ a copy of the ~~following:~~ Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the SEC shall be deemed to satisfy the requirements of this clause (1i); (ii) as soon as practicable and in any event within ~~ninety (90)~~ 90 days after the end of each fiscal ~~year~~ year, a consolidated statement of income, a consolidated statement of cash flow and a consolidated statement of stockholders equity of the ~~Borrower~~Retained Companies for such year, ~~commencing with the fiscal year ending December 31, 2024,~~ and a consolidated balance sheet of the ~~Borrower and its Subsidiaries~~ Retained Companies as at of the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the corresponding figures ~~for~~ from the ~~previous~~ preceding fiscal year, all in reasonable detail and ~~all prepared in accordance with GAAP, audited~~ examined and ~~accompanied~~ reported on by ~~a report and opinion~~ independent public accountants of ~~an independent registered public accounting firm of nationally~~ recognized national standing ~~or another accounting firm reasonably acceptable to~~ selected by the ~~Administrative Agent~~Company, which report ~~and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to~~ shall state that such consolidated financial statements present fairly the ~~scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ financial position of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries Retained Companies as at the ~~end of such fiscal quarter,~~ dates indicated and the ~~related (a) consolidated statement~~ results of their operations ~~for such fiscal quarter~~ and changes in their financial position for the ~~portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth,~~ periods indicated in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance conformity with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year GAAP applied on a ~~quarterly~~ basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation consistent with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.B-3

Appears in 3 contracts

Sources: Investment Agreement (Us Office Products Co), Investment Agreement (Us Office Products Co), Investment Agreement (Us Office Products Co)

Financial Statements and Other Reports. ~~Deliver~~ Lessee shall deliver to the ~~Administrative~~ Agent (with sufficient copies for ~~prompt further distribution by~~ the ~~Administrative~~ Agent to ~~each Lender (subject~~ distribute such copies to the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02~~Assignees) ~~each of the following~~and Lessor, at Lessee’s sole expense: (1) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) ~~the impending maturity of the Facilities, (ii)~~ As soon as available and in any ~~anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2)~~ event within forty-five (45) days after the end of each of the first three ~~(3)~~ fiscal quarters of each fiscal year ~~of the Borrower commencing~~ (and, with ~~September 30~~respect to each fiscal quarter occurring after January 1, ~~2024~~2005, ~~a consolidated balance sheet of the Borrower and its Subsidiaries as at~~ within 40 days after the end of such fiscal quarter), the consolidated Financial Statements of Lessee and ~~the related (a) consolidated statement of operations~~ its Subsidiaries for such fiscal ~~quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended~~quarter, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries prepared in accordance with ~~GAAP~~GAAP consistently applied, ~~subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations~~ all in ~~the form customarily prepared by management of the Borrower~~reasonable detail; (3ii) As soon as available and in any event within ~~ninety~~ seventy (9070) days after the end of each fiscal ~~year~~ year, the consolidated Financial Statements of Lessee and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail, and accompanied by a report thereon of PricewaterhouseCoopers LLP or another firm of independent certified public accountants of recognized national standing, which report shall be unqualified as to scope of audit; (iii) Together with the ~~Borrower, commencing with respect~~ Financial Statements required pursuant to ~~the fiscal year ending December 31, 2024~~clauses (i) and (ii) of this Section 18.1(a), a ~~consolidated budget for~~ compliance certificate of a Responsible Officer of Lessee (a “Compliance Certificate”) which (A) states that such Financial Statements fairly present the ~~following fiscal year on a quarterly basis as customarily prepared by management~~ financial condition of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower~~ Lessee and its Subsidiaries as at the last day of the ~~end of the following~~ fiscal quarter or fiscal year covered by such Financial Statements and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of ~~the Borrower~~ Lessee and its Subsidiaries for ~~the most recently ended measurement period for which financial statements~~ such quarter or year and have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with ~~generally accepted auditing standards and (b) will not be~~ GAAP consistently applied, subject to ~~any qualification as to the scope of such~~ normal, year-end audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except adjustments in the case of the ~~Revolving Facility~~Financial Statements for any fiscal quarter; and (B) states that no Lease Default or Lease Event of Default has occurred and is continuing, ~~an actual~~ or, if any such Lease Default or Lease Event of Default has occurred and is continuing, a statement as to the nature thereof and what action Lessee proposes to take with respect thereto; (A) Promptly after the giving, sending or filing thereof, copies of all reports, if any, which Lessee or any of its Subsidiaries sends generally to any class of holders of its respective capital stock or other securities and (B) promptly, but in no event later than five (5) Business Days, after the sending or filing thereof, copies of all reports or filings, if any, by Lessee or any of its Subsidiaries with the SEC or any national securities exchange; (v) Promptly after Lessee has knowledge or becomes aware thereof, notice of the ~~Financial Covenant). Any financial statements required~~ occurrence or existence of any Lease Default or Lease Event of Default; (vi) Prompt written notice of any action, event or occurrence that could reasonably be expected to result in a Material Adverse Effect due to environmental liability under Environmental Laws; (vii) Prompt written notice of all actions, suits and proceedings before any Governmental Authority or arbitrator pending, or to the best of Lessee’s knowledge, threatened against or affecting Lessee or any of its Subsidiaries which (A) if adversely determined would involve an aggregate liability of $25,000,000 or more in excess of amounts covered by third-party insurance or (B) otherwise may have a Material Adverse Effect; (viii) Promptly after Lessee has knowledge or becomes aware thereof, (A) notice of the occurrence of any ERISA Event, together with a copy of any notice of such ERISA Event to the PBGC and (B) the details concerning any action taken or proposed to be ~~delivered~~ taken by the IRS, PBGC, Department of Labor or other Person with respect thereto; (ix) Promptly upon the commencement or increase of contributions to, the adoption of, or an amendment to, a Plan by Lessee or an ERISA Affiliate, if such commencement or increase of contributions, adoption, or amendment could reasonably be expected to result in a net increase in unfunded liability to Lessee or an ERISA Affiliate in excess of $10,000,000, a calculation of the net increase in unfunded liability; (x) Promptly after filing or receipt thereof by Lessee or any ERISA Affiliate, copies of the following: (A) Any notice received from the PBGC of intent to terminate or have a trustee appointed to administer any Pension Plan; (B) Any notice received from the sponsor of a Multiemployer Plan concerning the imposition, delinquent payment, or amount of withdrawal liability; (C) Any demand by the PBGC under Subtitle D of Title IV of ERISA; and (D) Any notice received from the IRS regarding the disqualification of a Plan intended to qualify under Section 401(a) of the Code; (xi) Within forty-five (45) days of the date thereof, or, if earlier, on the date of delivery of any Financial Statements pursuant to ~~Sections 6.01(1~~clause (i) or ~~6.01(2~~(ii) of this Section 18.1(a), notice of any change in accounting policies or financial reporting practices by Lessee or any of the Significant Subsidiaries that is expected to affect (or has affected) materially under GAAP the consolidated financial condition of Lessee and its Subsidiaries; (xii) Promptly after the occurrence thereof, notice of any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving Lessee or any of its Subsidiaries which could result in an Material Adverse Effect; (xiii) Upon request from time to time of Agent or Lessor, the Swap Termination Values, together with a description of the method by which such values were determined, relating to any then-outstanding Rate Contracts to which Lessee or any of its Subsidiaries is a party; (xiv) Prompt written notice of any change in Lessee’s fiscal year; (xv) Prompt written notice of any Person or Subsidiary not identified on Schedule 17.1(l) that becomes a Significant Subsidiary after the Delivery Date; (xvi) Prompt written notice of a Material Adverse Effect; and (xvii) Such other information respecting the operations, properties, business or condition (financial or otherwise) of Lessee or the Significant Subsidiaries as Agent or Lessor may from time to time reasonably request. Each notice pursuant to clauses (vi)-(xvii) of this Section 18.1(a) shall ~~not~~ be ~~required~~ accompanied by a written statement by a Responsible Officer of Lessee setting forth details of the occurrence referred to ~~contain all purchase accounting adjustments relating~~ therein, and stating what action Lessee proposes to ~~the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~take with respect thereto.

Appears in 2 contracts

Sources: Lease and Security Agreement (Lsi Logic Corp), Lease and Security Agreement (Lsi Logic Corp)

Financial Statements and Other Reports. ~~Deliver~~ Company will deliver to ~~the~~ Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingand Lenders: (1i) ~~within ninety~~ QUARTERLY FINANCIALS: (90a) no later than 45 days after the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of the first three Fiscal Quarters of each Fiscal Year and the related consolidated statements of income and cash flows of Company, its Subsidiaries and its Unrestricted Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and (b) promptly when available but in any event no later than 60 days after the end of the first three Fiscal Quarters of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ consolidated balance sheet of ~~the Borrower~~ Company and its Subsidiaries as at the end of ~~such fiscal year,~~ each Fiscal Quarter and the related consolidated statements of ~~operations~~ income and cash flows of Company and its Subsidiaries for such ~~fiscal year, together with related notes thereto~~ Fiscal Quarter and ~~management’s discussion and analysis describing results of operations in~~ for the ~~form customarily prepared by management~~ period from the beginning of the ~~Borrower~~then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding under both clauses (a) and (b), ) above) in comparative form the corresponding figures for the corresponding ~~fiscal quarter~~ periods of the previous ~~fiscal year~~ Fiscal Year, all in reasonable detail and certified (in the ~~corresponding portion~~ case of both clauses (a) and (b) above) by the ~~previous fiscal year~~chief financial officer of Company that they fairly present, ~~accompanied by an Officer’s Certificate stating that such financial statements fairly present~~ in all material ~~respects~~ respects, the financial ~~condition~~condition of Company, its Subsidiaries and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows of for the ~~Borrower and its Subsidiaries in accordance with GAAP~~periods indicated, subject to changes resulting from audit and normal year-end ~~adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~adjustments; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.

Appears in 2 contracts

Sources: Credit Agreement (Alliance Imaging Inc /De/), Credit Agreement (Alliance Imaging Inc /De/)

Financial Statements and Other Reports. ~~Deliver~~ (a) From and after the Closing Date, Azul shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingTrustee: (1i) ~~within ninety (90) days after the end of each fiscal year~~ an English language version of the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ Parent Guarantor’s annual audited consolidated ~~balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated~~ financial statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with ~~GAAP, audited and accompanied by a report and opinion~~ IFRS promptly upon such financial statements becoming available but not later than 120 days after the close of its fiscal year; (ii) an ~~independent registered public accounting firm~~ English language version of ~~nationally recognized standing or another accounting firm reasonably acceptable to~~ the ~~Administrative Agent, which report and opinion (a) will be~~ Parent Guarantor’s unaudited interim condensed consolidated financial statements prepared in accordance with ~~generally accepted auditing standards and~~ IFRS promptly upon such statements becoming available but not later than 60 days after the close of each fiscal quarter (~~b) will not be subject to any qualification as to~~ other than the ~~scope~~ last fiscal quarter of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenantits fiscal year); (2iii) ~~within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30~~without duplication, ~~2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end~~ English language versions or summaries of such ~~fiscal quarter,~~ other reports or notices as may be filed or submitted by (and promptly after filing or submission by) the ~~related~~ Guarantors with (a) ~~consolidated statement of operations for such fiscal quarter and for~~ the ~~portion of the fiscal year then ended and~~ CVM or (b) ~~consolidated statement of cash flows for~~ the ~~portion of the fiscal year then ended, setting forth, in each case of the preceding clauses~~ SEC (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent ~~prepared by management~~ that any such report or notice is generally available to security holders of the ~~Borrower and included~~ Parent Guarantor or the public in ~~such consolidated budget~~Brazil or elsewhere and, in the case of clause (b), ~~which projected financial statements~~ is filed or submitted pursuant to Rule 12g3-2(b) under, or Section 13 or 15(d) of, the Exchange Act, or otherwise); (iv) within 90 days after the end of the fiscal year, a certificate of a Responsible Officer of the Parent Guarantor certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (v) no later than 45 days after the end of each Quarterly Reporting Period (or, in respect of the last Quarterly Reporting Period of its fiscal year, 60 days), a certificate of a Responsible Officer of the Parent Guarantor, certifying the Liquidity as of the last day of such Quarterly Reporting Period; (vi) on each (a) Allocation Date, an Allocation Date Statement and (b) no later than ten Business Days following the start of each Quarterly Reporting Period, a Quarterly Freeflow Threshold Statement, in each case to the Trustee and the U.S. Collateral Agent and the Brazilian Collateral Agent. The Trustee may, prior to the related Distribution Date, provide notice to the Issuer and the U.S. Collateral Agent and the Brazilian Collateral Agent of any information contained in the Allocation Date Statement that the Trustee believes to be incorrect. If the Trustee provides such a notice, the Issuer shall ~~be prepared in good faith~~ use its reasonable efforts to resolve the discrepancy and provide an updated Allocation Date Statement on or prior to the related Distribution Date. If the discrepancy is not resolved and a replacement Allocation Date Statement is not received by the Trustee prior to the payment of available funds on the ~~basis~~ related Distribution Date pursuant to the provisions of ~~assumptions believed~~ the Payment Waterfalls and it is later determined that the information identified by the Trustee as incorrect was in fact incorrect and such error resulted in a party receiving a smaller distribution on the Distribution Date than they would have received had there not been such an error, then the Issuer shall indemnify such party for such shortfall. For the avoidance of doubt and, notwithstanding anything to ~~be reasonable at~~ the ~~time~~ contrary in this Indenture or in any Shared Collateral Document, the Trustee shall have no obligation to inquire into, investigate, verify or perform any calculations in connection with an Allocation Date Statement or notice from the Trustee in respect of ~~preparation of such projected financial statements (~~the same; it being understood and agreed that the Trustee shall be entitled to conclusively rely, and shall not be liable for so relying, on the Allocation Date Statement last received by it on or prior to each Distribution Date and the Trustee shall have no obligation, responsibility or liability in connection with any ~~such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control~~ indemnification payment of the ~~Loan Parties~~ Issuer pursuant to the immediately preceding sentence; (vii) as soon as possible, and in any event within 15 Business Days after the Chief Financial Officer or the Treasurer of Azul becoming aware of the occurrence of a Default or an Event of Default that ~~no assurance can be given that any particular projections will be realized~~is continuing, ~~that actual results may differ~~ an Officer’s Certificate specifying such Default or Event of Default and ~~that such differences may be material)~~what action the Parent Guarantor and its Subsidiaries are taking or propose to take with respect thereto; and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (iiviii) any ~~anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements~~ other reports required to be delivered pursuant to ~~Sections 6.01(1) or 6.01(2) shall not be~~ the requirements of the Intercreditor Agreement at the same time such reports are delivered as required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsthereunder.

Appears in 2 contracts

Sources: Indenture (Azul Sa), Indenture (Azul Sa)

Financial Statements and Other Reports. ~~Deliver~~ The Company will deliver to the ~~Administrative Agent for prompt further distribution by the Administrative Agent to each Lender~~ Purchaser: (~~subject to the limitations on distribution of any such information to Public Lenders~~ a) as ~~described in Section 6.02) each of the following:~~ available, but no later than thirty (~~1) within ninety (90~~30) days after the ~~end~~ last day of each ~~fiscal year~~ month, a company prepared “flash report” covering the Company’s and its Consolidated Subsidiaries’ consolidated operations during the period, prepared in a manner, scope and detail satisfactory to the Purchaser, certified by a Responsible Officer and in a form acceptable to the Purchaser, (b) as available, but no later than forty five (45) days (unless further extended to sixty (60) days pursuant to the grant of a valid extension to the filing deadline of the ~~Borrower, commencing with~~ related 10-Q from the ~~fiscal year ending December 31, 2024~~SEC) after the last day of each Fiscal Quarter of the Company, a company prepared consolidated balance ~~sheet of~~ sheet, cash flow and income statement (including year-to-date results) covering the ~~Borrower~~ Company’s and its ~~Subsidiaries~~ Consolidated Subsidiaries’ consolidated operations during the period, prepared under GAAP, consistently applied, setting forth in comparative form the corresponding figures as at the end of ~~such fiscal year,~~ the corresponding Fiscal Quarter of the previous Fiscal Year and the ~~related consolidated statements of operations and cash flows~~ projected figures for such ~~fiscal year~~period based upon the projections required hereunder, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable ~~detail and all prepared in accordance with GAAP~~detail, ~~audited and accompanied~~ certified by a ~~report~~ Responsible Officer and ~~opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably~~ in a form acceptable to the ~~Administrative Agent, which report and opinion~~ Purchaser; (c) together with the flash reports described in (a) ~~will be prepared in accordance~~ above, evidence of payment and satisfaction of all payroll, withholding and similar taxes due and owing by all Obligors with ~~generally accepted auditing standards and (b~~respect to the payroll period(s) ~~will not be~~ occurring during such month, subject to ~~any qualification~~ Section 7.2; (d) as ~~to the scope of such audit (~~soon as available, but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-no later than one hundred five (45105) days after the ~~end of each~~ last day of the ~~first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30~~Company’s Fiscal Year, ~~2024, a~~ audited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements ~~fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with~~ prepared under GAAP, ~~subject to normal year-end adjustments and the absence of footnotes~~consistently applied, together with ~~management~~an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to the Purchaser in its reasonable discretion; (e) within five (5) days of delivery or filing thereof, copies of all statements, reports (other than borrowing base reports delivered pursuant thereto) and notices made available to the Company’s ~~discussion~~ security holders or to any agents or lenders under any Existing Senior Secured Debt Documents and ~~analysis describing results~~ copies of ~~operations~~ all reports and other filings made by the Company with any stock exchange on which any securities of any Obligor are traded and/or the SEC; (f) a prompt written report of any legal actions pending or threatened against any Obligor or any of its Subsidiaries that could reasonably be expected to result in damages or costs to any Obligor or any of its Subsidiaries of One Hundred Fifty Thousand Dollars ($150,000) or more; (g) prompt written notice of an event that materially and adversely affects the ~~form customarily prepared by management~~ value of any Intellectual Property; (h) budgets, sales projections, operating plans and other financial information and information, reports or statements regarding the Obligors, their business and the Collateral (including, without limitation, copies of any borrowing base reports delivered pursuant to any of the ~~Borrower;~~ Existing Senior Secured Debt Documents) as the Purchaser may from time to time reasonably request. The Company will, within thirty (~~3) within ninety (90~~30) days after the last day of each month, deliver to the Purchaser (i) with the first two monthly flash reports described in clause (a) above and (ii) with quarterly financial statements described in clause (b) above, a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the financial covenants set forth in this Agreement; (i) promptly upon receipt thereof, copies of all financial statements of, and all reports and management letters submitted by, independent public accountants to any of the Obligors in connection with each annual, interim, or special audit of any Obligor’s financial statements; (j) within sixty (60) days following the end of ~~each fiscal year~~ the Company’s Fiscal Year, the Company shall deliver to the Purchaser the annual budget for both the Company and any of its Subsidiaries, including forecasts of the ~~Borrower~~income statement, ~~commencing with respect to~~ the ~~fiscal year ending December 31, 2024,~~ balance sheet and a ~~consolidated budget~~ cash flow statement for the ~~following fiscal~~ immediately succeeding year on a quarterly basis ~~as customarily prepared by management of~~ and thereafter, shall promptly deliver any amendment thereto; (k) promptly upon their becoming available, the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, Company shall deliver to the ~~extent prepared by management~~ Purchaser copies of all Material Contracts or material amendments thereto entered into after the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsClosing Date.

Appears in 2 contracts

Sources: Note Purchase Agreement (Staffing 360 Solutions, Inc.), Note Purchase Agreement (Staffing 360 Solutions, Inc.)

Financial Statements and Other Reports. ~~Deliver to~~ For so long as any Certificates remain Outstanding, the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingFacility Lessees shall furnish: (1) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) ~~will~~ to Certificateholders, Certificate Owners and prospective investors, upon their request, the information required to be ~~prepared in accordance with generally accepted auditing standards and~~ delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Certificates are not freely transferable under the Securities Act; and (b) ~~will not be subject to any qualification as~~ to the ~~scope of~~ Pass Through Trustee, who in turn shall provide such ~~audit (but may contain~~ information, upon a ~~“going concern” or like qualification that is due~~ Certificate Owner Request, to Certificateholders and Certificate Owners: (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within ~~forty-five (45)~~ 60 days ~~after~~ following the end of each of the first three ~~(3)~~ fiscal quarters of the Facility Lessees during each fiscal year, a copy of Form 10-Q (or any successor form) filed by the Facility Lessees with the SEC for such fiscal quarter, or if the Facility Lessees are not then subject to the reporting requirements of the Exchange Act, unaudited consolidated quarterly financial statements for the Facility Lessees for such fiscal quarter; (ii) within 120 days following the end of the fiscal year of the ~~Borrower commencing with September 30, 2024~~Facility Lessees, a ~~consolidated balance sheet~~ copy of the ~~Borrower and its Subsidiaries as at~~ Form 10-K (or any successor form) filed by the ~~end of such fiscal quarter, and~~ Facility Lessees with the ~~related (a) consolidated statement of operations~~ SEC for such fiscal ~~quarter and for~~ year, or, if the ~~portion~~ Facility Lessees are not then subject to the reporting requirements of the ~~fiscal year then ended and (b)~~ Exchange Act, audited consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such annual financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material)statements; and (4iii) ~~[reserved]. Further~~within 20 days after the occurrence thereof, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) ~~the applicable financial statements~~ a copy of any ~~Parent Company~~ current report on Form 8-K (or any successor form) filed by the Facility Lessees with the SEC, if any, and (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each notice of the ~~preceding clauses (A) and (B),~~ following events (1) ~~to the extent such information relates to~~ a ~~Parent Company~~ Change of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and Control; (2) any litigation or claim against the Facility Lessees, or the South Point, Broad River and RockGen which could reasonably be expected to have a Material Adverse Effect; (3) the ~~extent such information is in lieu~~ appointment of ~~information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option~~ a receiver over any of the ~~Borrower), such materials are accompanied by~~ Facility Lessees or the confirmation of a ~~report and opinion~~ plan of ~~an independent registered public accounting firm~~ reorganization or liquidation for any of ~~nationally recognized standing~~ the Facility Lessees; or ~~another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion~~ (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i4) the ~~impending maturity~~ resignation or dismissal of the ~~Facilities, (ii) any anticipated inability to satisfy~~ independent accountants engaged by the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsFacility Lessees.

Appears in 2 contracts

Sources: Pass Through Trust Agreement (Calpine Corp), Pass Through Trust Agreement (Calpine Corp)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower will furnish or cause to be furnished financial statements and other monthly, quarterly or other periodic reports to the ~~Administrative~~ Agent ~~for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02)~~ and each of the ~~following~~Lenders as follows: (1a) within ninety (90) days after the ~~end~~ close of each fiscal ~~year of~~ year, the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ consolidated balance ~~sheet of the Borrower~~ sheets and ~~its Subsidiaries as at the end of such fiscal year, and the related~~ consolidated statements of ~~operations~~ income, retained earnings and cash flows (the "Financial Statements") for such ~~fiscal~~ year, ~~together with related notes thereto and management’s discussion and analysis describing results of operations~~ in ~~the form customarily prepared by management of the Borrower~~reasonable detail, and, setting forth in ~~each case in~~ comparative form the corresponding figures for the ~~previous fiscal~~ preceding year, ~~in reasonable detail~~ prepared pursuant to agreed upon procedures and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted ~~auditing standards~~ accounting principles consistently applied, accompanied by a report of an independent certified public accountant selected by Borrower and ~~(b) will not be subject to any qualification as to~~ approved by the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant)Agent; (2b) within forty-five (45) days after the end of each ~~of the first three (3) fiscal quarters~~ Fiscal Quarter of each fiscal ~~year of~~ year, the ~~Borrower commencing with September 30~~unaudited balance sheet, ~~2024,~~ income statement and a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows ~~for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses~~ similar to those required by clause (a) ~~and~~ above (~~b), in comparative form~~ but with a requirement as to comparison with the ~~figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal~~ prior year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and for such Fiscal Quarter then ended and for the ~~following~~ Fiscal Quarter from the beginning of the current fiscal year ~~and the related consolidated statements of projected income, in each case,~~ to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation end of such ~~projected financial statements (it being understood that any such projections are not to be viewed as facts~~Fiscal Quarter, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted ~~auditing standards~~ accounting principles consistently applied and certified as to preparation in accordance with generally accepted accounting principles and that such statements fairly present the financial condition of the Borrower at the dates thereof and for the periods then ended, on behalf of the Borrower by its chief financial officer, subject only to changes resulting from audit and normal year-end adjustments; (bc) ~~will not~~ at the delivery of each quarterly and annual statement, a detailed computation showing compliance with the Financial Covenants certified by the chief financial officer of the Borrower or other designated officer of Borrower acceptable to Agent ("Compliance Certificate"); and further certifying that such officer has caused this Agreement to be ~~subject to~~ reviewed and has no knowledge of any ~~qualification~~ Default by it in the performance or observance of any of the provisions hereof, during such month or at the end of such year, or, if such officer has such knowledge, specifying each Default and the nature thereof; (d) on a quarterly basis: (i) a certification by the chief financial officer of the Borrower as to the ~~scope~~ progress of construction and the ability of the Borrower to complete the Permitted Construction Projects in the time required by the Permitted Construction Lender or under any presale contracts with respect to such ~~audit (but may contain a “going concern”~~ Project, and evidence that no default or ~~like qualification~~ event of default under the Permitted Construction Loan and that ~~is due to~~ all requirements and conditions for further advances thereunder have been met, together with: (i) the ~~impending maturity of the Facilities,~~ most recent construction inspector report for each Permitted Construction Loan and (ii) ~~any anticipated inability~~ at the request of the Agent, copies of all reports of construction inspectors and architects retained to ~~satisfy~~ render periodic construction reports to the ~~Financial Covenant or~~ Permitted Construction Loans Lenders, copies of the applicable budgets and other financial information relevant to the Permitted Construction Projects; (ii) evidence that the Term Loan is in Balance; (iii) ~~except~~ copies of all title endorsements and title policies applicable to the Projects. (e) promptly upon receipt thereof, copies of all management letters which are submitted to Borrower by its independent accountants in connection with any annual or interim audit of Borrower's books made by such accountants; (f) Borrower shall submit to the Agent and the Lenders updated versions of the Budget and Cash Flow Projections on a semi-annual basis and Loan Reserve Analysis quarterly or at such earlier times as may be requested by the Agent; (g) The Borrower shall submit to the Agent an updated version of the Loan Reserve Analysis on a quarterly basis. The Loan Reserve Analysis shall provide an analysis of the rolling five month interest obligations with respect to the Term Loans and evidence that the Interest Reserve is in sufficient amount to fully fund the five month pro forma interest requirement. The Borrower shall provide the Agent with all necessary support in performing any due diligence required to verify the information reported in the ~~case~~ updated Loan Reserve Analysis and Budget. In the event of a dispute as to such calculation, the Agent's calculation shall control; (h) on a quarterly basis, a Budget variance report as to each category of the ~~Revolving Facility, an actual Default~~ Budget setting forth the current status of the ~~Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1~~Budget and the variance of the categories thereof on an incurred basis during the previous quarter; (i) ~~or 6.01(2) shall not be required to contain~~ on a monthly basis, a report showing the total number and dollar value of sales of all units at all Projects, including the total units closed with the total purchase ~~accounting adjustments relating~~ price and Net Proceeds, the total units under contract including purchase price and total deposit, and a status report of such contracts and closings as to the ~~Transactions or any other transaction(s) permitted hereunder to~~ amounts projected for the ~~extent it is not practicable to include any such adjustments~~ month in ~~such financial statements.~~the Budget;

Appears in 2 contracts

Sources: Credit Agreement (Asc East Inc), Credit Agreement (American Skiing Co /Me)

Financial Statements and Other Reports. ~~Deliver~~ (a) The Borrower will establish and maintain, and will cause each of its Subsidiaries to establish and maintain, in accordance with sound business practices and applicable law and rules and regulations issued by any Governmental Authority (i) a system of accounting, which shall include maintenance of proper books and records, to permit preparation of financial statements in conformity with GAAP and to provide reasonable assurances that (A) transactions are executed in accordance with management's general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management's general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (ii) effective disclosure controls and procedures designed to ensure that material information relating to the ~~Administrative~~ Borrower and its Subsidiaries is made known to Responsible Officers of the Borrower in a timely manner. (b) The Borrower will deliver to the Agent, the Lenders, the Supplemental Guarantors, the Board, the Loan Administrator and the Collateral Agent ~~for prompt further distribution~~ (but only to the extent information is to be delivered pursuant to clauses (V), (VII) and, in the case of information requested by the ~~Administrative Agent to each Lender~~ Collateral Agent, (~~subject to the limitations on distribution of~~ XX) below): (i) (A) Quarterly Financials: as soon as available and in any ~~such information to Public Lenders as described in Section 6.02) each of the following:~~ event within five (~~1) within ninety (90~~5) days after the date on which the Borrower is required to file its Form 10-Q under the Exchange Act, (x) the balance sheet of the Borrower as at the end of each fiscal ~~year~~ quarter and the related statements of ~~the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet~~ income and stockholders' equity of the Borrower for such fiscal quarter and ~~its Subsidiaries as at~~ cash flows of the Borrower for the period from the beginning of the then current Fiscal Year to the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrowerquarter, setting forth in each case in comparative form the corresponding figures ~~for~~ from the corresponding periods of the previous ~~fiscal year~~Fiscal Year and the corresponding figures from the quarterly projections delivered pursuant to clause (viii)(B) of this SECTION 5.1(b) for such quarter, ~~in reasonable detail and~~ all prepared in accordance with ~~GAAP, audited~~ GAAP and ~~accompanied~~ in reasonable detail and certified by ~~a report and opinion of an independent registered public accounting firm of nationally recognized standing~~ the Chief Financial Officer or ~~another accounting firm reasonably acceptable to~~ the ~~Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope~~ Chief Executive Officer of such ~~audit (but may contain a “going concern” or like qualification~~ company that ~~is due to (i)~~ they fairly present the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year financial condition of the Borrower ~~commencing with September 30~~as at the dates indicated and the results of its operations and its cash flows for the periods indicated (subject to normal year-end audit adjustments), ~~2024,~~ and (y) a ~~consolidated balance sheet~~ narrative report describing the operations of the Borrower ~~and its Subsidiaries as at~~ in the ~~end of such fiscal quarter, and the related (a) consolidated statement of operations~~ form prepared for presentation to senior management for such fiscal quarter and for the ~~portion~~ period from the beginning of ~~the fiscal year~~ then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject current Fiscal Year to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of ~~each~~ such fiscal ~~year~~ quarter; provided that the delivery of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-~~K or 10-Q, as applicable,~~ Q filed by the Borrower with the SEC ~~(and the public filing of~~ for such ~~report with the SEC~~ fiscal quarter shall ~~constitute delivery under this Section 6.01); provided that with respect~~ be deemed to ~~each~~ satisfy all of the ~~preceding clauses (A) and (B~~requirements of this SECTION 5.1(B)(I)(A), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.;

Appears in 1 contract

Sources: Loan Agreement (Frontier Airlines Inc /Co/)

Financial Statements and Other Reports. ~~Deliver~~ (a) From and after the Closing Date, Azul shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingTrustee: (1i) ~~within ninety (90) days after the end of each fiscal year~~ an English language version of the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ Parent Guarantor’s annual audited consolidated ~~balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated~~ financial statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with ~~GAAP, audited and accompanied by a report and opinion~~ IFRS promptly upon such financial statements becoming available but not later than 120 days after the close of its fiscal year; (ii) an ~~independent registered public accounting firm~~ English language version of ~~nationally recognized standing or another accounting firm reasonably acceptable to~~ the ~~Administrative Agent, which report and opinion (a) will be~~ Parent Guarantor’s unaudited interim condensed consolidated financial statements prepared in accordance with ~~generally accepted auditing standards and~~ IFRS promptly upon such statements becoming available but not later than 60 days after the close of each fiscal quarter (~~b) will not be subject to any qualification as to~~ other than the ~~scope~~ last fiscal quarter of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenantits fiscal year); (2iii) ~~within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30~~without duplication, ~~2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end~~ English language versions or summaries of such ~~fiscal quarter,~~ other reports or notices as may be filed or submitted by (and promptly after filing or submission by) the ~~related~~ Guarantors with (a) ~~consolidated statement of operations for such fiscal quarter and for~~ the ~~portion of the fiscal year then ended and~~ CVM or (b) ~~consolidated statement of cash flows for~~ the ~~portion of the fiscal year then ended, setting forth, in each case of the preceding clauses~~ SEC (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent ~~prepared by management~~ that any such report or notice is generally available to security holders of the ~~Borrower and included~~ Parent Guarantor or the public in ~~such consolidated budget~~Brazil or elsewhere and, in the case of clause (b), is filed or submitted pursuant to Rule 12g3-2(b) under, or Section 13 or 15(d) of, the Exchange Act, or otherwise); (iv) within 90 days after the end of the fiscal year, a certificate of a Responsible Officer of the Parent Guarantor certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (v) within 120 days after the end of the Parent Guarantor’s fiscal year, deliver to the Trustee (A) an Appraisal as of a date no earlier than six months prior to the date that such Appraisal is delivered to the Trustee (an “Annual Appraisal”), and (B) a certificate certifying the LTV Ratio (calculated as to First Priority Secured Debt only) calculated by reference to such Annual Appraisal. (vi) no later than 30 days after the end of each Quarterly Reporting Period, a certificate of a Responsible Officer of the Parent Guarantor, certifying whether or not (A) the TudoAzul Receivables Coverage Covenant and the Azul Viagens Receivables Coverage Covenant has been satisfied as of the end of such Quarterly Reporting Period (which ~~projected financial statements~~ certificate shall attach a calculation demonstrating such compliance, which certificate shall not be required to name individual transactions or agreements and shall be ~~prepared~~ confidential and Holders shall have no right to request access thereto), (B) the Obligors are in ~~good faith~~ compliance with deposit requirements under the Transaction Documents with respect to the TudoAzul Agreements and the Azul Viagens Agreements, and (C) the Debt Service Coverage Ratio for such Quarterly Reporting Period was greater than the Debt Service Coverage Ratio levels required for the incurrence of Permitted First Priority Secured Debt, which certification shall include a calculation of the Debt Service Coverage Ratio, including a certification of the amount of the cost of goods sold and commissions applicable to the Azul Viagens business used to calculate the Debt Service Coverage Ratio (which certificate shall be confidential and Holders shall have no right to request access thereto); (vii) following implementation of the Lockbox Structure, on each (a) Allocation Date, an Allocation Date Statement and (b) no later than ten Business Days following the start of each Quarterly Reporting Period, a Quarterly Freeflow Threshold Statement, in each case to the Trustee and the U.S. Collateral Agent and the Brazilian Collateral Agent. The Trustee may, prior to the related Distribution Date, provide notice to the Issuer and the U.S. Collateral Agent and the Brazilian Collateral Agent of any information contained in the Allocation Date Statement that the Trustee believes to be incorrect. If the Trustee provides such a notice, the Issuer shall use its reasonable efforts to resolve the discrepancy and provide an updated Allocation Date Statement on or prior to the related Distribution Date. If the discrepancy is not resolved and a replacement Allocation Date Statement is not received by the Trustee prior to the payment of Available Funds on the ~~basis~~ related Distribution Date pursuant to the provisions of ~~assumptions believed~~ the Payment Waterfalls and it is later determined that the information identified by the Trustee as incorrect was in fact incorrect and such error resulted in a party receiving a smaller distribution on the Distribution Date than they would have received had there not been such an error, then the Issuer shall indemnify such party for such shortfall. For the avoidance of doubt and, notwithstanding anything to ~~be reasonable at~~ the ~~time~~ contrary in this Indenture or in any Collateral Document or Azul Cargo Collateral Document, the Trustee shall have no obligation to inquire into, investigate, verify or perform any calculations in connection with an Allocation Date Statement or notice from the Trustee in respect of ~~preparation of such projected financial statements (~~the same; it being understood and agreed that the Trustee shall be entitled to conclusively rely, and shall not be liable for so relying, on the Allocation Date Statement last received by it on or prior to each Distribution Date and the Trustee shall have no obligation, responsibility or liability in connection with any ~~such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control~~ indemnification payment of the ~~Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material)~~Issuer pursuant to the immediately preceding sentence; and (4viii) ~~[reserved]. Further~~as soon as possible, and in any event within 15 Business Days after the Chief Financial Officer or the Treasurer of Azul becoming aware of the occurrence of a Default or an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent Guarantor and its subsidiaries are taking or propose to take with respect thereto. (b) In no event shall the Trustee be entitled to inspect, receive and make copies of materials (except in connection with any enforcement or exercise of remedies in the case of clause (A)) (A) that constitute non-registered Intellectual Property, TudoAzul Customer Data or non-financial proprietary information, (B) in respect of which disclosure to the Trustee, the ~~Borrower shall conduct live quarterly conference calls~~ U.S. Collateral Agent or any Holder (or their respective representatives or contractors) is prohibited by law or any binding agreement (or would otherwise cause a breach or default thereunder) or (C) that ~~the Lenders may attend~~ are subject to ~~discuss the financial condition and results of operations of the Borrower and its Subsidiaries~~ attorney client or similar privilege or constitute attorney work product. (c) The requirement for the ~~most recently ended measurement period for which financial statements have been delivered pursuant~~ Parent Guarantor to ~~Section 6.01(1) and Section 6.01(2), at a date and time~~ deliver to ~~be determined by Borrower in consultation with~~ the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding Trustee the ~~foregoing, the obligations~~ information or reports referred to in ~~Sections 6.01(1~~clauses (i) ~~and 6.01(2~~through (iii) ~~may~~ above shall be deemed satisfied ~~with respect to financial~~ if such information ~~of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company~~ or ~~(B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable,~~ report has been filed with the SEC through the Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system (or any successor method of filing) or if such information or report is made available on the Parent Guarantor’s website (and the ~~public filing of~~ Parent Guarantor shall provide the relevant URL to the Trustee upon request). (d) The requirement for the Parent Guarantor to deliver to the Trustee the information, reports or certificates referred to in clauses (iv) through (viii) above shall be deemed satisfied if, at its option, the Parent Guarantor (A) files such ~~report~~ information, reports or certificates with the SEC through the Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system (or any successor method of filing) or if such information report is made available on the Parent Guarantor’s website (and the Parent Guarantor shall ~~constitute delivery under this Section 6.01~~provide the relevant URL to the Trustee upon request)~~; provided that with respect to each of the preceding clauses (A)~~ , and (B~~), (1~~) provides written notice to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood Trustee that such information, reports or certificates have been so filed or made available. (e) In addition, any information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to ~~Sections 6.01(1~~this Indenture to the Trustee pursuant to clauses (i) through (viii) above may, at the option of the Parent Guarantor, be made available by the Trustee to the Holders by posting such information on the Parent Guarantor’s website at a website address to be notified to the Holders from time to time. (f) The Trustee shall have no responsibility to determine if and when any information, reports or ~~6.01(2)~~ certificates have been made available online. Delivery of reports, information, appraisals and documents to the Trustee is for informational purposes only and its receipt of such reports, information, appraisals and documents shall not ~~be required to contain all purchase accounting adjustments relating to~~ constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance by the ~~Transactions~~ Issuer, Guarantor or any other ~~transaction(s) permitted hereunder~~ Person with any of its covenants under this Indenture or the Notes (as to which the ~~extent it~~ Trustee is ~~not practicable~~ entitled to ~~include~~ rely exclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the content, filing or timeliness of any ~~such adjustments~~ report, appraisal or other information delivered, filed or posted under or in ~~such financial statements~~connection with this Indenture, the other Transaction Documents or the transactions contemplated thereunder. The Trustee has no duty to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to matters disclosed in any reports or other documents filed with the SEC or ▇▇▇▇▇ or any website under this Indenture.

Appears in 1 contract

Sources: Indenture (Azul Sa)

Financial Statements and Other Reports. ~~Deliver~~ In the case of the Borrower, maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in accordance with GAAP and to provide the information required to be delivered to the Lenders hereunder, and will deliver to the Administrative Agent ~~for prompt further distribution by the Administrative Agent~~ which shall furnish to each ~~Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Lender: (1a) as soon as practicable and in any event within ~~ninety (90)~~ 45 days after the end of each ~~fiscal year~~ of the ~~Borrower,~~ first three fiscal quarters of each Fiscal Year of the Borrower (commencing with the fiscal ~~year~~ quarter ending ~~December 31~~September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower), setting forth in each case in comparative form ~~the~~ figures for the corresponding periods of the previous Fiscal Year (which requirement to set forth comparative form figures shall commence with the fiscal ~~year~~quarter ending September 30, 2024), the unaudited consolidated balance sheets of the Borrower as of the end of such fiscal quarter and the related consolidated income statement and statement of cash flows for the fiscal period then ending, in each case, for such quarter, and for the portion of the Fiscal Year ended at the end of such fiscal quarter, all in reasonable detail and certified by a Financial Officer as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated subsidiaries and as having been prepared in accordance with GAAP, subject to changes resulting from audit and other year-end adjustments and the absence of footnote disclosures; (b) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower (commencing with the Fiscal Year ending December 31, 2024), setting forth in each case in comparative form figures for the previous Fiscal Year, the audited consolidated balance sheets of the Borrower as of the end of such Fiscal Year and the related consolidated income statement and statement of cash flows for such Fiscal Year, certified by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public accountants of nationally recognized standing or reasonably acceptable to the Administrative Agent and shall not be subject to any qualification as to the Borrower’s ability to continue as a “going concern” (other than a “going concern” or “emphasis of matter” explanatory paragraph or like statement) or scope of the audit, other than any such exception, explanatory paragraph or qualification that is with respect to, or resulting from or relating to, (A) an actual or potential breach of a financial covenant hereunder, under the ABL Credit Agreement or under any Permitted Additional Indebtedness Document, (B) an upcoming maturity date of Debt occurring within 12 months of such audit or (C) activities, operations, financial results or liabilities of Unrestricted Subsidiaries; provided that such financial statements shall not be required to reflect any purchase accounting (or similar) adjustments; (c) if any Unrestricted Subsidiary exists, concurrently with each delivery of financial statements under Section 5.01(a) or (b) above, financial statements (in substantially the same form as the financial statements delivered pursuant to Section 5.01(a) or (b) above, as applicable) prepared on the basis of consolidating the accounts of the Borrower and its Restricted Subsidiaries and treating any Unrestricted Subsidiaries as if they were not consolidated with the Borrower, together with an explanation of reconciliation adjustments in reasonable detail; (d) within five (5) Business Days of each delivery of financial statements pursuant to Sections 5.01(a) and 5.01(b), a Compliance Certificate substantially in the form of Exhibit D (which shall set forth reasonably detailed calculations of Liquidity); (e) promptly upon their becoming available, copies of all financial statements and regular, periodic or special reports which such Person may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority; (f) promptly upon any Responsible Officer of the Borrower or any of the Restricted Subsidiaries obtaining knowledge thereof, notice of (i) the existence of any Event of Default or Default or (ii) the institution of any litigation or arbitration which would reasonably be expected to have a Material Adverse Effect or (iii) the occurrence of any other event that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (g) except to the extent such activities would not reasonably be expected to result in a Material Adverse Effect, promptly upon any Responsible Officer of the Borrower or any of the Restricted Subsidiaries obtaining knowledge of any complaint, order, citation, notice, request for information or other written communication from any Person alleging any Environmental Liability of the Borrower or any Restricted Subsidiary, a certificate of a Responsible Officer specifying the nature and estimated Liability of any such matter, or specifying the notice given or action taken by such holder or Person, and what action the applicable Loan Party has taken, is taking or proposes to take with respect thereto; (h) promptly upon receipt of the same, copies of material notices other documents received by any Loan Party under or pursuant to the ABL Credit Agreement and the Loan Documents (as defined in the ABL Credit Agreement) related to any default or event of default by a Loan Party thereto; (i) on or prior to the date the financial statements are required to be delivered pursuant to clause (b) above, an operating budget for the such fiscal year then-commenced (and not requiring information for any subsequent period), in a form as customarily prepared by management of the Borrower for such purpose or such other form as the Borrower and the Administrative Agent may reasonably agree; (j) [reserved]; (k) [reserved]; (l) [reserved]; (m) [reserved]; (n) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and, to the extent the Borrower qualifies as a “legal entity customer” thereunder, the Beneficial Ownership Regulation; and (o) with reasonable promptness, such other information and data with respect to the operations, business affairs and financial condition of any Loan Party or Restricted Subsidiary as from time to time may be reasonably requested by the Administrative Agent. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to any financial statements of the Borrower by furnishing (A) the applicable financial statements of any Person that is a direct or indirect parent of the Borrower and of which the Borrower is a direct or indirect subsidiary (a “Parent Entity”) or (B) the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower or any Parent Entity filed with the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs and without any requirement to provide notice of such filing to the Administrative Agent or to any Lender; provided that, with respect to each of clauses (A) and (B), (i) if (1) such financial statements relate to any Parent Entity and (2) either (I) such Parent Entity (or any other Parent Entity that is a subsidiary of such Parent Entity) has any non de-minimis third party Debt and/or non de-minimis operations (as determined by the Borrower in good faith and other than any operations that are attributable solely to such Parent Entity’s ownership of the Borrower and its Subsidiaries) or (II) there are non de-minimis differences between the financial statements of such Parent Entity and its consolidated subsidiaries, on the one hand, and the Borrower and its consolidated Subsidiaries, on the other hand, such financial statements or the Form 10-K or Form 10-Q, as applicable, shall be accompanied by consolidating information (which need not be audited) that summarizes in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and its consolidated Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such statements are in lieu of statements required to be provided under Section 5.01(a), such statements shall be accompanied by a report ~~and opinion~~ of an independent ~~registered public~~ accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report shall satisfy the applicable requirements set forth in Section 5.01(a) as if the references to “the Borrower” therein were references to such Parent Entity. Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the earlier of the date (I) on which the Borrower (or a representative thereof) posts such documents, or provides a link thereto, on the Borrower’s website on the Internet, (II) on which such documents are delivered by the Borrower to the Administrative Agent for posting on the Borrower’s behalf on IntraLinks/IntraAgency, SyndTrak or another secure website, if any, to which each Lender and ~~opinion~~ the Administrative Agent have access (awhether a commercial, third-party website or whether sponsored by the Administrative Agent), (III) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent) or (IV) in respect of the items required to be delivered pursuant to Section 5.01(e) above in respect of information filed by any Parent Entity, the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q Reports and Form 10-K Reports), on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority or securities exchange; provided that the Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. Notwithstanding anything to the contrary in this Article V, none of the Borrower or any Restricted Subsidiary will be ~~prepared in accordance with generally accepted auditing standards and (b) will not be subject~~ required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any ~~qualification as~~ document, information or other matter pursuant to ~~the scope of such audit (but may contain a “going concern” or like qualification~~ this Article V that ~~is due to~~ (i) ~~the impending maturity of the Facilities,~~ constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any ~~anticipated inability to satisfy the Financial Covenant~~ Lender (or any of their respective representatives or contractors) is prohibited by any Requirements of Law or any binding confidentiality agreement, (iii) ~~except~~ that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which the ~~case~~ Borrower (or any Parent Entity thereof) or any Subsidiary owes confidentiality obligations to any third party; provided that if the Borrower does not provide information that is otherwise required to be delivered pursuant to this Article V as a result of any of the ~~Revolving Facility~~foregoing exceptions, ~~an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of~~ the Borrower ~~commencing with September 30, 2024, a consolidated balance sheet of~~ shall use commercially reasonable efforts to (A) notify the ~~Borrower and its Subsidiaries as at the end of~~ Administrative Agent that such ~~fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended~~ information is being withheld and (bB) ~~consolidated statement of cash flows for~~ describe the ~~portion of the fiscal year then ended, setting forth~~applicable information in reasonable detail, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding foregoing clauses (A) and (B), solely to the Borrower or such Subsidiary, as applicable, determines in good faith that such notification and description (1x) are feasible, (y) are permitted under Requirements of Law and such binding agreements and (z) would not result in the waiver or deemed waiver of any such privilege, as applicable. For the avoidance of doubt, anything disclosed, examined inspected or otherwise made available pursuant to this Article V shall be subject to the provisions of Section 9.12 to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsapplicable.

Appears in 1 contract

Sources: Credit Agreement (Lucid Group, Inc.)

Financial Statements and Other Reports. ~~Deliver~~ (a) Company shall furnish to ~~the Administrative~~ Agent ~~for prompt further distribution by the Administrative Agent to~~ and each Lender ~~(subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of~~ the following, all in form and detail reasonably satisfactory to Majority Lenders: (1) As soon as available and in any event within thirty (30) days after the end of each calendar month, statements of income and changes in stockholders' equity of the Company and, if applicable, Company's Subsidiaries, on a consolidated and consolidating basis for the immediately preceding month, and related balance sheet as at the end of the immediately preceding month, all in reasonable detail, prepared in accordance with GAAP applied on a consistent basis, and certified as to the fairness of presentation by the president, chief financial officer, controller or treasurer of the Company, subject, however, to year-end audit adjustments. (2) As soon as available and in any event within ninety (90) days after the ~~end~~ close of each fiscal ~~year~~ year: statements of income, changes in stockholders' equity and cash flows of the ~~Borrower~~Company, ~~commencing with the fiscal year ending December 31~~and, ~~2024~~if applicable, Company's Subsidiaries, on a consolidated and consolidating basis for such year, the related balance sheet ~~of the Borrower and its Subsidiaries~~ as at the end of such year (setting forth in comparative form the corresponding figures for the preceding fiscal year), all in reasonable detail, prepared in accordance with GAAP applied on a consistent basis throughout the periods involved, and accompanied by an opinion in form and substance satisfactory to the Administrative Agent and prepared by an accounting firm reasonably satisfactory to the Administrative Agent, or other independent certified public accountants of recognized standing selected by the Company and acceptable to the Administrative Agent, as to said financial statements and a certificate signed by the president, chief financial officer, controller or treasurer of the Company stating that said financial statements fairly present the financial condition and results of operations of the Company and, if applicable, Company's Subsidiaries as at the end of, and for, such year. (3) Together with each delivery of financial statements required in this Section 6.2, an Officer's Certificate in substantially the form of EXHIBIT "G" hereto. (4) Monthly or more frequently as the Administrative Agent may from time to time request, commitment summaries and pipeline reports for the Company substantially in the form of EXHIBIT "N" (the "Commitment Summary Report") dated as of the close of business on the last Business Day of each calendar month and provided to the Administrative Agent by facsimile by 10:00 a.m. on the next succeeding Business Day, and the signed original thereof shall be sent to the Administrative Agent by first class mail on such next succeeding Business Day. (5) Together with each delivery of the monthly financial statement required in Section 6.2(a), reports in respect of the Pledged Mortgages and Pledged Securities, in such detail and at such times as the Administrative Agent in its discretion may request at any time or from time to time, including, without limitation, mortgage production and sale report, mortgage loan deficiency report, mortgage loan delinquency report and mortgage loan collateral value report. (6) Copies of all regular or periodic financial and other reports, if any, which the Company shall file with the Securities and Exchange Commission or any governmental agency successor thereto and copies of any audits completed by GNMA, FHLMC, or FNMA. (7) With respect to Aged Mortgage Loans, copies of the complete credit and collateral file relating to each Aged Mortgage Loan, an updated title opinion covering the Mortgaged Property securing each Aged Mortgage Loan issued in form and substance acceptable to Administrative Agent and issued by a title company acceptable to Administrative Agent, a current appraisal or brokers price opinion certifying the current market value of the Mortgaged Property securing each Aged Mortgage Loan in form and substance acceptable to Administrative Agent and such other information or documentation relating to the borrowers or Mortgaged Property of each Aged Mortgage Loan, all of the foregoing to be provided as the Administrative Agent in its discretion may request at any time or from time to time and at the sole cost and expense of the Company. (8) Promptly and in any event within thirty (30) days after the end of each month a list of all Repurchased Mortgage Loans (including the outstanding principal amounts of each) repurchased by Company during such month, together with a list of all other Repurchased Mortgage Loans (including the outstanding principal amount of each) then owned by Company; (9) Promptly and in any event within thirty (30) days after the end of each month a Securitization Reporting Worksheet for Monthly Reporting in the form of EXHIBIT "R" hereto, executed by the president, chief financial officer, controller or treasurer of Company; (10) Promptly and in any event within thirty (30) days after the closing of any securitization of Mortgage Loans, a Securitization Reporting Worksheet in the form of EXHIBIT "S" hereto, executed by the president, chief financial officer, controller or treasurer of Company; (11) Promptly and in any event within thirty (30) days after the end of each month, a report detailing the following information, with respect to any Mortgage Loans serviced by Company during such month: the aggregate unpaid principal amount of such Mortgage Loans, the weighted average interest rate of such Mortgage Loans, the weighted average maturity date of such Mortgage Loans; the principal amount of each Mortgage Loan which was paid in full during such month; the aggregate principal amount of such Mortgage Loans which are 30, 60 or 90 days delinquent, the aggregate principal amount of any such Mortgage Loans either repurchased or foreclosed upon during such month; (12) Promptly and in any event within thirty (30) days after the end of each month, a list of all REO (including the acquisition cost to Company of such REO) purchased by Company during such month, together with a list of all other REO then owned by Company; (13) From time to time, with reasonable promptness, such further information regarding the business, operations, properties or financial condition of the Company as the Administrative Agent may reasonably request. (b) Guarantor shall furnish to Administrative Agent and each Lender the following, all in form and detail reasonably satisfactory to Majority Lenders: (1) Promptly after becoming available, and in any event within ninety (90) days after the close of each fiscal year of Guarantor, the Consolidated balance sheet of Guarantor and its Consolidated Subsidiaries as of the end of such year, and the related ~~consolidated~~ Consolidated statements of ~~operations~~ income, stockholders' equity and cash flows of Guarantor and its Consolidated Subsidiaries for such ~~fiscal~~ year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the corresponding figures for the ~~previous~~ preceding fiscal year, ~~in reasonable detail and all~~ accompanied by the related report of independent certified public accountants, KPMG Peat Marwick or other independent certified public accountants of national standing acceptable to Majority Lenders which report shall be to the effect that such statements have been prepared in accordance with ~~GAAP, audited and accompanied by~~ GAAP applied on a ~~report and opinion of an~~ basis consistent with prior periods except for such changes in such principles with which the independent ~~registered~~ public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant)accountants shall have concurred; (2) Promptly after becoming available, and in any event within forty-five (45) days after the end of each fiscal quarter of Guarantor, including the ~~first three (3)~~ last fiscal ~~quarters of each~~ quarter in the fiscal year of ~~the Borrower commencing with September 30~~Guarantor, ~~2024, a consolidated~~ Guarantor's Consolidated and consolidating balance sheet as of the ~~Borrower~~ end of such fiscal quarter and the related Consolidated and consolidating statements of income, stockholder's equity and cash flows of Guarantor and its Consolidated Subsidiaries ~~as at~~ for such fiscal quarter and the period from the first day of the then current Fiscal Year of Guarantor through the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower;and (3) Promptly after becoming available, and in any event within ~~ninety~~ forty-five (9045) days after the end of each fiscal ~~year of~~ quarter, including the ~~Borrower, commencing with respect to~~ last fiscal quarter in the fiscal year ~~ending December 31, 2024~~of Guarantor, a ~~consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ copy of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries~~ Guarantor's 10-Q as of the end of ~~the following~~ such fiscal ~~year and the related consolidated statements of projected income, in each case, to the extent prepared~~ quarter filed by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation Guarantor with the ~~Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance~~ Securities and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions Exchange Commission or any ~~other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~similar governmental authority.

Appears in 1 contract

Sources: Warehousing Credit and Security Agreement (Nab Asset Corp)

Financial Statements and Other Reports. ~~Deliver~~ Lessee shall deliver to the ~~Administrative~~ Agent (with sufficient copies for ~~prompt further distribution by~~ the ~~Administrative~~ Participants and Agent ~~to each Lender (subject~~ shall promptly thereafter distribute such copies to the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Participants), at Lessee's sole expense: (1) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) ~~the impending maturity of the Facilities,~~ As soon as available and in any event within fifty (~~ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45~~50) days after the end of each of the first three ~~(3)~~ fiscal quarters of each fiscal ~~year~~ year, the consolidated Financial Statements of ~~the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower~~ Lessee and its Subsidiaries ~~as at the end of~~ for such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries prepared in accordance with ~~GAAP~~GAAP consistently applied, ~~subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations~~ all in ~~the form customarily prepared by management of the Borrower~~reasonable detail; (3ii) As soon as available and in any event within ~~ninety~~ one hundred (90100) days after the end of each fiscal ~~year~~ year, the consolidated Financial Statements of Lessee and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail, and accompanied by a report thereon of PricewaterhouseCoopers LLP or another firm of independent certified public accountants of recognized national standing, which report shall be unqualified as to scope of audit or the ~~Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ status of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower~~ Lessee and its Subsidiaries as a going concern; (iii) Together with the Financial Statements required pursuant to clauses (i) and (ii) of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budgetthis Section 5.1(a), a compliance certificate of a Responsible Officer of Lessee (a "Compliance Certificate") which ~~projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements~~ (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and A) states that such ~~differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss~~ Financial Statements fairly present the financial condition of Lessee and its Subsidiaries as at the last day of the fiscal quarter or fiscal year covered by such Financial Statements and the results of operations of ~~the Borrower~~ Lessee and its Subsidiaries for ~~the most recently ended measurement period for which financial statements~~ such quarter or year and have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with ~~generally accepted auditing standards and (b) will not be~~ GAAP consistently applied, subject to ~~any qualification as to the scope of such~~ normal, year-end audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except adjustments in the case of the ~~Revolving Facility~~Financial Statements for any fiscal quarter; (B) states that no Lease Default has occurred and is continuing, ~~an actual~~ or, if any such Lease Default has occurred and is continuing, a statement as to the nature thereof and what action Lessee proposes to take with respect thereto; and (C) sets forth, for the fiscal quarter or fiscal year covered by such Financial Statements or as of the ~~Financial Covenant)~~last day of such quarter or year, the calculation of the financial ratios and tests provided in Section 5.3; (iv) As soon as available and in any event within fifty (50) days after the end of each fiscal quarter, a certificate of a Responsible Officer of Lessee (a "Pricing Ratio LSI Trust No. ~~Any financial statements required~~ 2001-A Participation Agreement Certificate") which sets forth the calculation of the Pricing Ratio as of the last day of such quarter; (v) Promptly after the giving, sending or filing thereof, copies of all reports, if any, which Lessee or any of its Subsidiaries sends generally to any class of holders of its respective capital stock or other securities and of all reports or filings, if any, by Lessee or any of its Subsidiaries with the SEC or any national securities exchange; (vi) Promptly after Lessee has knowledge or becomes aware thereof, notice of the occurrence or existence of any Lease Default or Lease Event of Default; (vii) Prompt written notice of any action, event or occurrence that could reasonably be expected to result in a Material Adverse Effect due to environmental liability under Environmental Laws; (viii) Prompt written notice of all actions, suit and proceedings before any Governmental Authority or arbitrator pending, or to the best of Lessee's knowledge, threatened against or affecting Lessee or any of its Subsidiaries which (A) if adversely determined would involve an aggregate liability of $25,000,000 or more in excess of amounts covered by third-party insurance, or (B) otherwise may have a Material Adverse Effect; (ix) Promptly after Lessee has knowledge or becomes aware thereof, (A) notice of the occurrence of any ERISA Event, together with a copy of any notice of such ERISA Event to the PBGC, and (B) the details concerning any action taken or proposed to be ~~delivered~~ taken by the IRS, PBGC, Department of Labor or other Person with respect thereto; (x) Promptly upon the commencement or increase of contributions to, the adoption of, or an amendment to, a Plan by Lessee or an ERISA Affiliate, if such commencement or increase of contributions, adoption, or amendment could reasonably be expected to result in a net increase in unfunded liability to Lessee or an ERISA Affiliate in excess of $10,000,000, a calculation of the net increase in unfunded liability; (xi) Promptly after filing or receipt thereof by Lessee or any ERISA Affiliate, copies of the following: (A) Any notice received from the PBGC of intent to terminate or have a trustee appointed to administer any Pension Plan; (B) Any notice received from the sponsor of a Multiemployer Plan concerning the imposition, delinquent payment, or amount of withdrawal liability; (C) Any demand by the PBGC under Subtitle D of Title IV of ERISA; and LSI Trust No. 2001-A Participation Agreement (D) Any notice received from the IRS regarding the disqualification of a Plan intended to qualify under Section 401(a) of the Code; (xii) Within forty-five (45) days of the date thereof, or, if earlier, on the date of delivery of any Financial Statements pursuant to ~~Sections 6.01(1~~clause (i) or ~~6.01(2~~(ii) of this Section 5.1(a), notice of any change in accounting policies or financial reporting practices by Lessee or any of the Significant Subsidiaries that is expected to affect (or has affected) materially under GAAP the consolidated financial condition of Lessee and its Subsidiaries; (xiii) Promptly after the occurrence thereof, notice of any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving Lessee or any of its Subsidiaries which could result in an Material Adverse Effect; (xiv) Upon request from time to time of Agent or any Participant (through Agent), the Swap Termination Values, together with a description of the method by which such values were determined, relating to any then-outstanding Rate Contracts to which Lessee or any of its Subsidiaries is a party; (xv) Prompt written notice of any change in Lessee's fiscal year; (xvi) Prompt written notice of any Person or Subsidiary not identified on Schedule 4.1(l) that becomes a Significant Subsidiary after the Document Closing Date; (xvii) Prompt written notice of any other condition or event which has resulted, or that could reasonably be expected to result, in a Material Adverse Effect; and (xviii) Such other information respecting the operations, properties, business or condition (financial or otherwise) of Lessee or the Significant Subsidiaries as Agent or any Participant (through Agent) may from time to time reasonably request. Each notice pursuant to clauses (vi)--(xviii) of this Section 5.1(a) shall ~~not~~ be ~~required~~ accompanied by a written statement by a Responsible Officer of Lessee setting forth details of the occurrence referred to ~~contain all purchase accounting adjustments relating~~ therein, and stating what action Lessee proposes to ~~the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~take with respect thereto.

Appears in 1 contract

Sources: Participation Agreement (Lsi Logic Corp)

Financial Statements and Other Reports. ~~Deliver~~ From and after the Closing and until the date upon which each of the Investors in the aggregate beneficially own less than 2% of the Shares issued at the Closing Date, it will deliver to each such Investor: (i) as soon as practicable and in any event no later than the day that a Form 10-Q is required to be filed by the Company with the SEC following each quarterly period (other than the last quarterly period) in each fiscal year, consolidated statements of operations, statements of stockholders’ equity and cash flows of the Company for the period from the beginning of the then current fiscal year to the ~~Administrative Agent~~ end of such quarterly period, and a consolidated balance sheet of the Company as of the end of such quarterly period setting forth in each case in comparative form figures for ~~prompt further distribution by~~ the ~~Administrative Agent~~ corresponding period or date in the preceding fiscal year, together with a certificate from a senior officer of the Company to ~~each Lender~~ the effect that such financial statements have been prepared in accordance with GAAP consistently applied during the periods involved (subject to year-end adjustments) and that such financial statements fairly present the ~~limitations on distribution~~ results of ~~any such information to Public Lenders as described~~ operations and changes in ~~Section 6.02) each~~ financial position, stockholders’ equity, cash flows and financial position of the ~~following:~~Company as of and for the period then ended; provided, however, that the timely filing with the SEC of the Company’s periodic report on Form 10-Q for such period shall be deemed to satisfy the requirements of this Section 6(m)(i); and (1ii) ~~within ninety (90) days after~~ as soon as practicable and in any event no later than the day that a Form 10-K is required to be filed by the Company with the SEC following the end of each fiscal ~~year of the Borrower, commencing with the fiscal year ending December 31, 2024~~year, a consolidated balance sheet of the ~~Borrower and its Subsidiaries~~ Company as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ operations, statements of stockholders’ equity and cash flows for such fiscal year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the corresponding figures ~~for~~ from the ~~previous~~ preceding fiscal year, ~~in reasonable detail and all prepared in accordance~~ together with ~~GAAP, audited and accompanied by a~~ the audit report ~~and opinion~~ of an independent ~~registered~~ public ~~accounting firm~~ accountants of ~~nationally~~ recognized standing ~~or another accounting firm reasonably acceptable to~~ selected by the ~~Administrative Agent~~Company; provided, ~~which report and opinion (a) will be prepared in accordance~~ however, that the timely filing with ~~generally accepted auditing standards and (b) will not be subject to any qualification as to~~ the ~~scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ SEC of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year Annual Report on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K ~~or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each~~ of the ~~preceding clauses (A) and (B), (1) to the extent~~ Company for such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not fiscal year shall be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability deemed to satisfy the ~~Financial Covenant or (iii) except in the case~~ requirements of ~~the Revolving Facility, an actual Default of the Financial Covenant~~this Section 6(m)(ii). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.

Appears in 1 contract

Sources: Subscription and Registration Rights Agreement (Endeavour International Corp)

Financial Statements and Other Reports. ~~Deliver~~ The Company shall deliver to ~~the Administrative Agent for prompt further distribution by the Administrative Agent~~ GSCP and to each ~~Lender (subject~~ holder of a number of Securities equal to ~~the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each~~ not less than 10% of the ~~following~~Securities issued as of the Closing Date: (1a) as soon as practicable and in any event within ~~ninety~~ 60 days after the end of each quarterly period (90other than the last quarterly period) in each fiscal year, statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (c) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Securities and Exchange Commission (the "Commission") shall be deemed to satisfy the requirements of this clause (a); (b) as soon as practicable and in any event within 100 days after the end of each fiscal ~~year~~ year, statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the ~~Borrower~~Company and its Subsidiaries for such year, ~~commencing with the fiscal year ending December 31, 2024,~~ and a consolidated balance sheet of the ~~Borrower~~ Company and its Subsidiaries as at of the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the corresponding figures ~~for~~ from the ~~previous~~ preceding fiscal year, all in reasonable detail and ~~all prepared in accordance with GAAP~~examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, ~~audited and accompanied by~~ however, that delivery pursuant to clause (c) below of a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity copy of the ~~Facilities, (ii) any anticipated inability~~ Annual Report on Form l0-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the ~~Financial Covenant or~~ requirements of this clause (~~iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant~~b); (2c) ~~within forty-five~~ promptly upon transmission thereof, copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (45without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission; and (d) ~~days after the end~~ copies of ~~each~~ any compliance certificates furnished to lenders in respect of Indebtedness of the ~~first three (3) fiscal quarters of each fiscal year~~ Company and its Subsidiaries and such other financial data of the ~~Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower~~ Company and its Subsidiaries as ~~at the end of~~ such ~~fiscal quarter~~Purchaser may reasonably request, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then endedincluding, ~~setting forth~~but not limited to, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to operating financial information of for each facility owned or operated by the ~~Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent~~ Company or ~~(B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing~~ any of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsSubsidiaries.

Appears in 1 contract

Sources: Securities Purchase Agreement (Recovery Engineering Inc)

Financial Statements and Other Reports. ~~Deliver~~ Seller shall deliver or cause to ~~the Administrative Agent for prompt further distribution by the Administrative Agent~~ be delivered to ~~each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Buyer: (1i) ~~within ninety~~ as soon as available and in any event not later than thirty (9030) days after the end of each calendar month, statements of income and changes in stockholders’ equity and cash flow of Seller (and, if applicable, Seller’s Subsidiaries on a consolidated and consolidating basis) for the immediately preceding month, and related balance sheet as of the end of the immediately preceding month, all in reasonable detail, prepared in accordance with GAAP applied on a consistent basis, and certified as to the fairness of presentation by the chief financial officer, treasurer or controller of Seller, subject, however, to normal year-end audit adjustments; (ii) as soon as available and in any event not later than ninety (90) days after Seller’s fiscal year end, statements of ~~the Borrower~~income, ~~commencing with the fiscal year ending December 31~~changes in stockholders’ equity and cash flows of Seller (and, ~~2024~~if applicable, Seller’s Subsidiaries on a consolidated basis) for the preceding fiscal year, the related balance sheet as of ~~the Borrower and its Subsidiaries as at~~ the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, year (setting forth ~~in each case~~ in comparative form the corresponding figures for the ~~previous~~ preceding fiscal year), all in reasonable ~~detail and all~~ detail, prepared in accordance with ~~GAAP~~GAAP applied on a consistent basis throughout the periods involved, ~~audited~~ and accompanied by ~~a report~~ an opinion in form and ~~opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable~~ substance satisfactory to ~~the Administrative Agent, which report and opinion~~ Buyer (~~a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain~~ without a “going concern” or like qualification, commentary or exception and without any qualification ~~that is due~~ or exception as to ~~(i)~~ the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end scope of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (aaudit) and ~~(b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied~~ prepared by an ~~Officer’s Certificate~~ accounting firm reasonably satisfactory to Buyer, or other independent certified public accountants of recognized standing selected by Seller and acceptable to Buyer, each stating that ~~such~~ said financial statements fairly present in all material respects the financial condition, cash flows and results of operations ~~and cash flows~~ of ~~the Borrower and its~~ Seller (and, if applicable, Seller’s Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, on a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries basis) as of the end of, and for, such year; (iii) together with each delivery of financial statements required in this Section 11(h), a Compliance Certificate executed by Seller’s chief financial officer, treasurer or controller; (iv) photocopies or electronic copies of all financial and other reports, if any, other than annual SEC Form 10K reports and quarterly SEC Form 10Q reports, that Seller, any Subsidiary of Seller or any Guarantor shall file with the ~~following fiscal year~~ SEC or any other Governmental Authority (other than routine tax and ~~the related consolidated statements of projected income~~corporate or organizational filings), ~~in each case~~not later than five (5) Business Days after filing, except to the extent ~~prepared~~ that any applicable Requirement of Law, or any contract with such Agency or Governmental Authority, prohibits disclosure thereof to Buyer; (v) upon Buyer’s request, a listing of Agency or regulatory examinations completed in the preceding twelve (12) months; (vi) within five (5) Business Days after Seller’s receipt thereof, a copy of any material findings resulting from the audit of Seller by ~~management~~ any Agency or regulatory authority, except to the extent that any applicable Requirement of ~~the Borrower~~ Law, or any contract with such Agency or Governmental Authority, prohibits disclosure thereof to Buyer; (vii) not less frequently than once every week (and ~~included in such consolidated budget~~more often if reasonably requested by Buyer), ~~which projected financial statements shall be prepared~~ a report in ~~good faith on~~ form and substance satisfactory to Buyer summarizing the ~~basis of assumptions believed~~ Hedging Arrangements, if any, then in effect with respect to ~~be reasonable at the time of preparation of such projected financial statements~~ all Mortgage Loans then owned by Buyer and interim serviced by Seller (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be materialor a Successor Servicer); and (4viii) ~~[reserved]. Further~~from time to time, with reasonable promptness, such further information regarding the ~~Borrower shall conduct live quarterly conference calls that~~ Mortgage Assets, or the ~~Lenders may attend to discuss the~~ business, operations, properties or financial condition of Seller and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) any Guarantor as Buyer may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Master Repurchase Agreement (AmeriHome, Inc.)

Financial Statements and Other Reports. Deliver to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) Holding will maintain, or cause each of ~~the following~~its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver to Lenders and Eurocurrency Lenders: (1i) as soon as practicable and in any event within ~~ninety (90)~~ 45 days after the end of each ~~fiscal year~~ of the ~~Borrower, commencing with~~ first three fiscal quarters in each Fiscal Year (including the fiscal ~~year ending December 31~~quarter ended June 27, ~~2024~~1997), (a) management's discussion and analysis of financial condition and results of operations contained in Holding's Quarterly Report on Form 10-Q for such fiscal quarter, or a written discussion and analysis in form and detail substantially similar thereto and (b) consolidated balance ~~sheet~~ sheets of ~~the Borrower~~ Holding and its Subsidiaries as at the end of such ~~fiscal year,~~ period and the related consolidated statements of ~~operations~~ income, stockholders' equity and cash ~~flows~~ flow of Holding and its Subsidiaries for such fiscal ~~year, together with related notes thereto~~ quarter and ~~management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower,~~ setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous Fiscal Year (all of said financial statements set forth in this clause (b) shall also include consolidating financial information with respect to the Subsidiaries), all in reasonable detail and certified by the Chief Financial Officer, Corporate Controller or Treasurer of Holding that they fairly present, in all material respects, the financial condition of Holding and its Subsidiaries as at the dates indicated and the results of their operations and cash flows for the periods indicated, subject to changes resulting from audit and normal year- end adjustments, and except that such financial statements need not contain notes and shall be prepared substantially in conformity with GAAP; (ii) as soon as practicable and in any event within 90 days after the end of each Fiscal Year, to the extent not included in management's discussion and analysis of financial condition and results of operations contained in Holding's Annual Report on Form 10-K for such Fiscal Year, (a) a written discussion of the financial and operating performance for the fourth fiscal quarter of such Fiscal Year from a profit and loss, cash flow and balance sheet standpoint and discussions of the major factors affecting such performance, including but not limited to changes in working capital for such fiscal quarter and consolidated balance sheets of Holding and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income (all of said financial statements set forth in this clause (a) shall also include consolidating financial information with respect to the Subsidiaries), stockholders' equity and cash flows of Holding and its Subsidiaries for such Fiscal Year, setting forth in each case, in comparative form the consolidated figures for the previous ~~fiscal~~ year, all in reasonable ~~detail~~ detail, including the notes thereto which shall, among other things, indicate that Holding and ~~all prepared~~ its Subsidiaries are in ~~accordance~~ compliance with ~~GAAP~~the financial covenants contained in this Agreement, ~~audited~~ and accompanied by a report ~~and opinion~~ thereon of an Coopers & ▇▇▇▇▇▇▇ or such other independent ~~registered~~ certified public ~~accounting firm~~ accountants of ~~nationally~~ recognized national standing ~~or another accounting firm reasonably acceptable~~ selected by Holding as shall be satisfactory to ~~the Administrative Agent,~~ Agent which report shall be unqualified as to going concern and ~~opinion (a) will be prepared~~ scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the financial position of Holding and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and (b) ~~will not be subject to any qualification as~~ with respect to the ~~scope~~ final quarter of such ~~audit~~ Fiscal Year, the schedules and financial information set forth in clause (~~but may contain a “going concern”~~ b) of subsection 5.1(i), certified by the Chief Financial Officer, Corporate Controller or ~~like qualification that is due to (i)~~ Treasurer of Holding as fairly presenting, in all material respects, the ~~impending maturity of~~ matters set forth therein as at the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or~~ dates thereof; (iii) ~~except~~ as soon as practicable and in ~~the case of the Revolving Facility~~any event within 45 days after June 30, ~~an actual Default of the Financial Covenant); (2)~~ 1997, July 31, 1997, and August 31, 1997, and within ~~forty-five (45)~~ 30 days after the ~~end~~ last day of each of calendar month (including the ~~first three (3) fiscal quarters~~ twelfth calendar month of each ~~fiscal year of~~ Fiscal Year) thereafter beginning with the ~~Borrower commencing with~~ calendar month ending September 30, ~~2024~~1997, a consolidated balance ~~sheet~~ sheets of ~~the Borrower~~ Holding and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year period and the related consolidated statements of ~~projected~~ income, stockholders' equity and cash flow of Holding and its Subsidiaries for such month and for the Fiscal Year to date and setting forth in each ~~case,~~ case in comparative form the consolidated figures for the corresponding periods of the previous Fiscal Year (all of said financial statements shall also include consolidating financial information with respect to the ~~extent prepared by management~~ Subsidiaries and shall include a comparison of ~~the Borrower and included in~~ such ~~consolidated~~ information to budget), ~~which projected~~ all in reasonable detail and certified by the Chief Financial Officer, Corporate Controller or Treasurer of Holding that they fairly present, in all material respects, the financial condition of Holding and its Subsidiaries as at the dates indicated and the results of their operations and cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, and except that such financial statements need not contain notes and shall be prepared substantially in ~~good faith~~ conformity with GAAP; (iv) promptly after preparation, and no later than 5:00 p.m., Dallas, Texas Time, on the ~~basis~~ 3rd Business Day of ~~assumptions believed~~ each week, a weekly revenue flash report and an estimate of cash and Indebtedness balances versus the prior week's forecast, all in the form currently being provided to Price Waterhouse LLP or such other form as may be acceptable to Requisite Lenders, and in each case breaking out such information with respect to North American and non-North American operations; (v) together with each delivery of financial statements of Holding and its Subsidiaries pursuant to subdivisions (i), (ii) and (iii) of this subsection 5.1, (x) an Officers' Certificate of Holding stating that the signers have reviewed the terms of this Agreement and the other Loan Documents and have made, or caused to be made under their supervision, a review in reasonable at detail of the ~~time~~ transactions and condition of ~~preparation of~~ Holding and its Subsidiaries during the accounting period covered by such ~~projected~~ financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such ~~differences~~ review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as of the date of the Officers' Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Holding has taken, is taking and proposes to take with respect thereto; and (y) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in this Agreement in the manner set forth in such Compliance Certificate; (vi) promptly upon any Executive Officer of Holding, Company or any Subsidiary obtaining knowledge (a) that a condition or event has occurred and is continuing that constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender or Agent or any Eurocurrency Lender or Eurocurrency Administrative Agent, as appropriate, has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under any Loan Document, (b) that any Person has given any notice to Holding, Company or any Material Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in subsection 8.2, (c) of any condition or event that would be required to be disclosed in a current report filed by Company with the Securities and Exchange Commission on Form 8-K pursuant to Items 1, 2 or 4 of such Form as in effect on the date hereof if Company were required to file such reports under the Exchange Act, or (d) of a material adverse change in the business, operations, properties, assets or condition (financial or otherwise) of Holding and its Subsidiaries taken as a whole, or of an event or condition that would reasonably be expected to result in such a material adverse change, an Officers' Certificate specifying the nature and period of existence of such condition or event, or specifying the notice given or action taken by such holder or Person and the nature of such claimed default, Event of Default, Potential Event of Default, event or condition, and what action Holding, or Company has taken, is taking and proposes to take with respect thereto; (vii) upon any officer of Holding, Company or any Subsidiary obtaining knowledge of (a) the institution of, or non-frivolous threat in writing of, any action, suit, proceeding, governmental investigation or arbitration against or affecting Holding or any of its Subsidiaries or any property of Holding, Company or any Subsidiaries not previously disclosed by Holding to Lenders and Eurocurrency Lenders and involving potential liability of Holding, Company or a Subsidiary for which reserves shall be required in conformity with GAAP in excess of $250,000 in any such case, or (b) any material development in any such action, suit, proceeding, governmental investigation or arbitration, that, in either case, would reasonably be expected to have a material and adverse effect on the business, operations, properties, assets or condition (financial or otherwise) of Holding and its Subsidiaries taken as a whole or on the prospects of Holding and its Subsidiaries taken as a whole, Holding shall promptly give notice thereof to Lenders and Eurocurrency Lenders and provide such other information as may be ~~material~~reasonably available to it to enable Lenders and Eurocurrency Lenders and their counsel to evaluate such matters; (viii) promptly upon becoming aware that one of the following has occurred or is about to occur: (a) Termination Event (other than a standard termination of any Pension Plan pursuant to Section 4041(b) of ERISA), or (b) non-exempt "prohibited transaction," as such term is defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA in connection with any Employee Benefit Plan or any trust created thereunder, a written notice specifying the nature thereof, what action Holding or Company has taken, is taking or proposes to take with respect thereto, and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor, or the PBGC with respect thereto; (ix) with reasonable promptness copies of (a) all notices received by Holding, Company or any of their respective ERISA Affiliates of the PBGC's intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan; (b) each Schedule A (Actuarial Information) to the annual report (Form 5500 Series) filed by Holding, Company or any of their ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan under which the present value of accrued benefits under such plan exceeds the current value of the assets of such plan as of the reporting date for such annual report; and (c) all notices received by Holding, Company or any of their ERISA Affiliates from a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to Section 4202 of ERISA; (x) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by Holding to its security holders or by Company or any Subsidiary to its security holders, of all regular and periodic reports and all registration statements and prospectuses, if any, filed by Holding, Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by Holding, Company or any Subsidiary to the public concerning material developments in the business of Holding and its Subsidiaries, taken as a whole; (xi) immediately prior to or coincident with the release thereof, notice of all material press releases to Agent and Eurocurrency Administrative Agent; and (4xii) ~~[reserved]. Further~~with reasonable promptness, ~~the Borrower shall conduct live quarterly conference calls that the Lenders may attend~~ a copy of any management letter submitted to ~~discuss the financial condition~~ Holding, Company or any Subsidiary by their independent certified public accountants and ~~results of operations of the Borrower~~ such other information and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied data with respect to ~~financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent~~ Holding, Company or ~~(B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q,~~ any Subsidiary as ~~applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect~~ from time to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information time may be ~~audited at the option of the Borrower), such materials are accompanied~~ reasonably requested by ~~a report and opinion of an independent registered public accounting firm of nationally recognized standing~~ any Lender or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsEurocurrency Lender.

Appears in 1 contract

Sources: Credit Agreement (Nu Kote Holding Inc /De/)

Appears in 1 contract

Sources: Warehousing Credit and Security Agreement (Finet Holdings Corp)

Financial Statements and Other Reports. ~~Deliver~~ The Company shall deliver, or shall cause to ~~the Administrative Agent for prompt further distribution by the Administrative Agent~~ be delivered, to ~~each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02)~~ each of the ~~following~~Lenders: (1a) As soon as available and in any event within ~~ninety (90)~~ 90 days after the end of each ~~fiscal~~ calendar year of (except as otherwise provided in Section 6.05), the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated~~ audited balance sheet of the ~~Borrower~~ Company and its Subsidiaries on a consolidated basis as at the end of such ~~fiscal~~ calendar year, and the related ~~consolidated~~ audited statements of ~~operations~~ operations, stockholders' equity and comprehensive income and cash flows of the Company and its Subsidiaries on a consolidated basis for such ~~fiscal~~ calendar year, ~~together~~ and commencing with ~~related notes thereto and management’s discussion and analysis describing results of operations in~~ respect to the ~~form customarily prepared by management of the Borrower~~calendar year ended December 31, 2002, setting forth in each case in comparative form the corresponding figures for the ~~previous fiscal~~ preceding calendar year, ~~in reasonable detail and all prepared in accordance with GAAP, audited~~ and accompanied by ~~a report and~~ the related opinion of an Deloitte & Touche LLP or such other independent ~~registered~~ public ~~accounting firm~~ accountants of ~~nationally~~ recognized national standing ~~or another accounting firm reasonably~~ acceptable to the Administrative ~~Agent, which report~~ Agent (without a "going concern" or like qualification or exception and ~~opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to~~ without any qualification or exception as to the scope of such ~~audit (but may contain a “going concern” or like qualification~~ audit) which opinion shall state that ~~is due to (i)~~ said financial statements present fairly, in all material respects, the ~~impending maturity~~ financial position and results of operations and its cash flows of the ~~Facilities~~Company and its Subsidiaries as at the end of, ~~(ii)~~ and for, such calendar year, and a certificate of such accountants stating that, in making the examination necessary for their opinion, they obtained no knowledge, except as specifically stated, of any ~~anticipated inability to satisfy the Financial Covenant or (iii) except in the case~~ Event of ~~the Revolving Facility, an actual Default of the Financial Covenant);~~Default. (2b) As soon as available and in any event within ~~forty-five (45)~~ 60 days after the end of each of the first three (3) ~~fiscal quarters~~ quarterly periods of each ~~fiscal year of~~ calendar year, the ~~Borrower commencing with September 30, 2024, a consolidated~~ unaudited balance sheet of the ~~Borrower~~ Company and its Subsidiaries on a consolidated basis as at the end of such ~~fiscal quarter~~period, and the related ~~(a)~~ unaudited statements of operations, stockholders' equity and comprehensive income and cash flows of the Company and its Subsidiaries on a consolidated ~~statement of operations~~ basis for such ~~fiscal quarter~~ period and for the ~~portion~~ period from the beginning of the ~~fiscal~~ respective calendar year ~~then ended~~ to the end of such period, and ~~(b) consolidated statement of cash flows for~~ commencing with respect to the ~~portion of the fiscal year then ended~~quarter ending March 31, 2002, setting ~~forth,~~ forth in each case ~~of the preceding clauses (a) and (b),~~ in comparative form the corresponding figures for the corresponding ~~fiscal quarter of~~ period in the ~~previous fiscal year and the corresponding portion of the previous fiscal~~ preceding calendar year, accompanied by ~~an Officer’s Certificate stating~~ the certificate of the senior financial officer of the Company, which certificate shall state that ~~such~~ said financial statements ~~fairly~~ present fairly, in all material ~~respects~~ respects, the financial ~~condition,~~ position and results of operations and cash flows of the ~~Borrower~~ Company and its Subsidiaries in ~~accordance~~ conformity with GAAP, as at the end of, and for, such period (subject to normal year-end ~~adjustments~~ audit adjustments). (c) The Company will promptly furnish and will cause the ~~absence~~ Subsidiaries and any ERISA Affiliate to promptly furnish to the Administrative Agent (1) promptly after the filing thereof with the United States Secretary of ~~footnotes~~Labor, ~~together~~ the Internal Revenue Service or the PBGC, copies of each annual and other report with ~~management’s discussion and analysis describing results~~ respect to each Plan subject to Title IV of ~~operations in the form customarily prepared by management~~ ERISA or any trust created thereunder, (2) immediately upon becoming aware of the ~~Borrower;~~ occurrence of any ERISA Event or of any "prohibited transaction," as described in section 406 of ERISA or in section 4975 of the Code, in connection with any Plan or any trust created thereunder, a written notice signed by the President or the principal financial officer of the Company, the Subsidiary or the ERISA Affiliate, as the case may be, specifying the nature thereof, what action the Company, the Subsidiary or the ERISA Affiliate is taking or proposes to take with respect thereto, and, when known, any action taken or proposed by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto, and (3) ~~within ninety~~ immediately upon receipt thereof, copies of any notice of the PBGC's intention to terminate or to have a trustee appointed to administer any Plan. With respect to each Plan, the Company will, and will cause each Subsidiary and ERISA Affiliate to, (901) ~~days~~ satisfy all of the contribution and funding requirements of section 412 of the Code (determined without regard to subsections (d), (e), (f) and (k) thereof) and of section 302 of ERISA (determined without regard to sections 303, 304 and 306 of ERISA), and (2) pay, or cause to be paid, to the PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all premiums required pursuant to sections 4006 and 4007 of ERISA, in each case prior the the imposition of any Lien or the posting of any bond or other security or the incurrence of a material underpayment charge or penalty. (d) Promptly after the ~~end~~ Company knows of any occurrence constituting an Event of Default or having a Material Adverse Effect, a notice of such Event of Default or Material Adverse Effect, describing the same in reasonable detail and what action if any, the Company proposes to take in response thereto. (e) Promptly upon their becoming available, one copy of each ~~fiscal year~~ financial statement, report, notice or proxy statement sent by the Company or any Subsidiary to stockholders generally, and of each regular or periodic report and any registration statement, prospectus or written communication (other than transmittal letters) in respect thereof filed by the Company or any Subsidiary with or received by the Company or any Subsidiary in connection therewith from, any securities exchange or the Securities and Exchange Commission -45- or any successor agency; provided, however, the foregoing shall not require the Company to provide the Lenders copies of routine business reports sent by the Company to its parent company in the ordinary course of business. (f) From time to time such other information regarding the business, affairs or financial condition of the ~~Borrower~~Company or any Subsidiary (including, ~~commencing~~ without limitation, any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA) as any Lender or the Administrative Agent may reasonably request; provided, however, that notwithstanding this or any other provision of this Agreement, the access of any and all of the Lenders, their agents and representatives to any information shall at all times be subject to such limitations as the Company may reasonably impose with respect to information that is subject to any confidentiality restrictions, considered by it to be proprietary or subject to attorney-client privilege. (g) Promptly after the ~~fiscal year ending December 31~~furnishing thereof, ~~2024~~copies of any statement or report furnished to any Person pursuant to the terms of any indenture, loan or credit or other similar agreement (other than documents executed in connection with this Agreement), and not otherwise required to be furnished to the Lenders pursuant to any other provision of this Section 8.01. The Company will furnish to each Lender, at the time it furnishes each set of financial statements pursuant to paragraph (a) or (b) above, a ~~consolidated budget for the following fiscal year on~~ certificate of a ~~quarterly basis as customarily prepared by management~~ senior financial officer of the ~~Borrower for its internal use~~ Company (~~including~~ i) to the effect that no Event of Default has occurred and is continuing (or, if any ~~projected consolidated balance sheet~~ Event of Default has occurred and is continuing, describing the same in reasonable detail), and (ii) setting forth in reasonable detail the computations necessary to determine whether the Company is in compliance with all of the ~~Borrower~~ terms, conditions, agreements and ~~its Subsidiaries~~ covenants contained in this Agreement including, without limitation, the covenants contained in Sections 9.12 and 9.13 as of the end of the ~~following~~ respective fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company quarter or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementscalendar year.

Appears in 1 contract

Sources: Credit Agreement (Houston Exploration Co)

Financial Statements and Other Reports. ~~Deliver~~ After the Closing Date, the Company agrees to send the ~~Administrative Agent for prompt further distribution by the Administrative Agent~~ following reports to each ~~Lender~~ holder of Series D Preferred Stock: (a) so long as the Company is subject to the ~~limitations on distribution of any such information to Public Lenders as described in~~ requirements of, or otherwise making filings pursuant to, Section ~~6.02~~13 or 15(d) ~~each~~ of the ~~following:~~Exchange Act, within three (3) days after the filing with the Commission, a copy of its Annual Report on Form 10-KSB or Form 10-K, its Quarterly Reports on Form 10-QSB or Form 10-Q, any proxy statements or information statements and any Current Reports on Form 8-K, together in each case with amendments thereto; (b) within one (1) day after release, copies of all press releases issued by the Company or any of its Subsidiaries; (c) promptly upon receipt thereof, copies of reports, if any, submitted to the Company by independent accountants in connection with each annual or interim audit of the books of the Company made by such accountants; and (d) all other information sent to holders of the Common Stock or any other equity security holder. Without limiting the foregoing, the Company shall deliver to each Purchaser until such Purchaser transfers, assigns (except in the case of an assignment to an Affiliate) or sells all of its Series D Preferred Stock (i) as soon as practicable and in any event within ~~ninety~~ 45 days after the end of each fiscal quarter, the following information: consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year to the end of such fiscal period and a comparison of each such item to the then current budget, and the balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal period, setting forth in each case in comparative form figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, certified as to fair presentation by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form; and (90ii) as soon as practicable and in any event within 90 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ the ~~fiscal year ending December 31~~following information: statements of income, ~~2024~~stockholders' equity and cash flows of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries as at the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form corresponding figures from the ~~figures for the previous~~ preceding fiscal year, ~~in reasonable detail and all~~ prepared in accordance with ~~GAAP~~generally accepted accounting principles consistently applied throughout the periods involved, ~~audited~~ and accompanied by ~~a report and~~ an opinion of ~~an independent registered public accounting~~ BDO Siedman LP, or another firm of ~~nationally recognized~~ independent public accountants of re▇▇▇▇▇▇▇▇ ▇ational standing ~~or another accounting firm reasonably acceptable~~ selected by the Company, to the ~~Administrative Agent,~~ effect that the consolidated financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which ~~report~~ such accountants concur and ~~opinion (a~~as are noted therein) ~~will be prepared~~ and present fairly the financial condition of the Company and its consolidated Subsidiaries and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and ~~(b) will not be subject to any qualification as to the scope of~~ accordingly included such ~~audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ tests of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ accounting records and such other auditing procedures as were considered necessary in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, circumstances; and accompanied by a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement~~ written discussion of operations ~~for~~ by management in summary form with respect to such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, ~~accompanied~~ including a comparison to budget. Each Purchaser is hereby authorized to deliver a copy of any financial statement delivered to it pursuant to this Section 4.1 to any regulatory body having jurisdiction over it that requests such information. Subject to compliance with reasonable confidentiality requirements imposed by ~~an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ the ~~financial condition~~Company, ~~results of operations and cash flows of~~ each Purchaser shall have reasonable access to the ~~Borrower~~ Company, including its management, and its ~~Subsidiaries in accordance with GAAP~~books and records during regular business hours and is further authorized to request information from and to have access to, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. FurtherCompany's expense, the ~~Borrower~~ Company's independent public accountants. The Company shall ~~conduct live quarterly conference calls that the Lenders~~ request such accountants to make available to any Purchaser such information as such Purchaser may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lendersreasonably request. Notwithstanding the foregoing, the ~~obligations referred~~ Company need not provide any Purchaser with any information pursuant to ~~in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of~~ this Section 4.1 which the ~~Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent~~ Company ~~or (B) the Borrower’s or~~ reasonably believes constitutes material, non-public information, unless such ~~Parent Company’s Form 10-K or 10-Q, as applicable, filed~~ Purchaser has entered into an acceptable written confidentiality agreement with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsCompany.

Appears in 1 contract

Sources: Securities Purchase Agreement (Electric City Corp)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower shall furnish to the ~~Administrative~~ Agent in sufficient copies for ~~prompt further~~ distribution ~~by the Administrative Agent to each Lender (subject~~ to the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Lenders: (1i) as soon as available and in any event within ~~ninety (90)~~ 45 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three ~~(3)~~ fiscal quarters of each fiscal ~~year of the Borrower commencing with September 30, 2024~~year, a consolidated ~~balance sheet of the Borrower~~ and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated consolidating balance sheet of the Borrower and its Subsidiaries as of the end of ~~the following fiscal year~~ such quarter, and the related consolidated and, as to statements of ~~projected~~ income only, consolidating statements of income, ~~in each case, to the extent prepared by management~~ shareholders’ equity and cash flows of the Borrower and ~~included~~ its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such ~~consolidated budget), which projected~~ financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss fairly present the financial condition of the Borrower and its Subsidiaries as at such date and the results of operations of the Borrower and its Subsidiaries for the ~~most recently~~ period ended ~~measurement period for which financial statements~~ on such date and have been ~~delivered pursuant~~ prepared in accordance with GAAP consistently applied, subject to ~~Section 6.01(1~~changes resulting from normal, year-end audit adjustments and except for the absence of notes; (ii) as soon as available and ~~Section 6.01(2)~~in any event within 90 days after the end of each fiscal year, at a ~~date~~ consolidated and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information consolidating balance sheet of the Borrower and its Subsidiaries ~~by furnishing (A)~~ as of the ~~applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing~~ end of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one handfiscal year, and the ~~information relating~~ related consolidated and, as to statements of income only, consolidating statements of income, shareholders’ equity and cash flows of the Borrower and ~~the consolidated~~ its Subsidiaries ~~on a stand-alone basis~~for such fiscal year, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with ~~generally accepted auditing standards~~ GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, and (bA) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of such consolidated financial statements, accompanied by an audit report thereon of M▇▇▇ A▇▇▇▇ LLP or another firm of independent certified public accountants of recognized national standing acceptable to the ~~Revolving Facility~~Majority Lenders, which report shall not be qualified as to (1) going concern, or (2) any limitation in the scope of the audit, and (B) in the case of such consolidating financial statements, certified by a Responsible Officer of the Borrower; (iii) together with the financial statements required pursuant to clauses (i) and (ii), a Compliance Certificate of a Responsible Officer as of the end of the applicable accounting period; (iv) together with the financial statements required pursuant to clause (ii), an ~~actual Default~~ Update Certificate of a Responsible Officer as of the ~~Financial Covenant~~end of the applicable fiscal year; (v) promptly upon receipt thereof, copies of all reports submitted to the Borrower by its independent certified public accountants in connection with each annual, interim or special audit examination of the Borrower and its Subsidiaries made by such accountants, including the “management letter” submitted by such accountants to the Borrower in connection with their annual audit; (vi) as soon as available and in any event not less than 30 days prior to the start of each fiscal year, a consolidated financial forecast for the Borrower and its Subsidiaries for the following fiscal year and each fiscal year thereafter through the Final Maturity Date, including forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries which forecast shall (A) state the assumptions used in the preparation thereof, (B) contain such other information as reasonably requested by the Agent or the Majority Lenders and (C) be in form reasonably satisfactory to the Agent and the Majority Lenders; (vii) as soon as available and in any event not less than 30 days prior to the start of each fiscal year, budgets of the Borrower and its Subsidiaries for each quarter of the following fiscal year, which budgets shall (A) state the assumptions used in the preparation thereof, (B) be in form satisfactory to the Agent and the Majority Lenders, and (C) be accompanied by a statement of a Responsible Officer of the Borrower that, to the best of such Responsible Officer’s knowledge, such budgets are a reasonable and good-faith estimate for the period covered thereby; (viii) as soon as available and in any event not later than the last Business Day of each fiscal month, (A) a completed Borrowing Base Certificate, (B) full and complete reports with respect to the Receivables, including information as to concentration, aging, identity of Receivable Debtors, letters of credit securing Receivables, disputed Receivables and other matters, as the Agent shall reasonably request, and (C) a detailed schedule of the Borrower’s Inventory, each as of the end of the immediately preceding fiscal month and in form and substance reasonably satisfactory to the Agent; (ix) promptly after the same are released, copies of all press releases; and (x) promptly after the giving, sending or filing thereof, copies of all reports, if any, which the Borrower or any of its Subsidiaries sends to the holders of its respective capital stock or other securities and of all reports or filings, if any, by the Borrower or any of its Subsidiaries with the SEC or any national securities exchange. As to any information contained in materials furnished pursuant to clause (x), the Borrower shall not be separately required to furnish such information under clause (i) or (ii), but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in clauses (i) and (ii) at the times specified therein. ~~Any financial statements~~ Additionally, reports required to be delivered pursuant to ~~Sections 6.01(1~~clauses (i), (ii) or ~~6.01(2~~(x) ~~shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s~~of subsection 10.01(a) ~~permitted hereunder~~ (to the extent ~~it is not practicable to include~~ any ~~such adjustments in~~ such financial statements, reports or proxy statements are included in materials otherwise filed with the SEC) may be delivered electronically and if so, shall be deemed to have been delivered on the date on which the Borrower posts such reports, or provides a link thereto, either: (i) on the Borrower’s website on the Internet at the website address listed on Schedule 2; or (ii) when such report is posted electronically on IntraLinks/IntraAgency or other relevant website to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent), if any, on the Borrower’s behalf; provided that: (A) the Borrower shall deliver paper copies of such reports to the Agent or any Lender who requests the Borrower to deliver such paper copies until written request to cease delivering paper copies is given by the Agent or such Lender; (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Agent and each Lender of the posting of any such reports and provide to the Agent by email electronic versions (i.e. soft copies) of such reports; and (C) in every instance the Borrower shall provide paper copies of the Compliance Certificates required by clause (iii) above to the Agent and each of the Lenders. Except for such Compliance Certificates, the Agent shall have no obligation to request the delivery or to maintain copies of the reports referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such reports.

Appears in 1 contract

Sources: Credit Agreement (Chalone Wine Group LTD)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower Representative shall deliver to ~~the Administrative Agent for prompt further distribution by the Administrative Agent to~~ Agent, on behalf of itself and each ~~Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~other Credit Party: (1a) ~~within ninety~~ as soon as available, but no later than thirty (9030) days after the ~~end~~ last day of each ~~fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024~~month, a company prepared consolidated balance ~~sheet of~~ sheet, cash flow and income statement (including year-to-date results) covering the Borrower Representative’s and its ~~Subsidiaries~~ Consolidated Subsidiaries’ consolidated operations during the period, prepared under GAAP, consistently applied, setting forth in comparative form the corresponding figures as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding ~~fiscal quarter~~ month of the previous fiscal year and the ~~corresponding portion~~ projected figures for such period based upon the projections required hereunder, all in reasonable detail, certified by a Responsible Officer and in a form acceptable to Agent; provided that solely for the period commencing as of the ~~previous fiscal year~~Closing Date through and including December 31, ~~accompanied by an Officer’s Certificate stating that such financial~~ 2025, the cash flow statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrowermay be delivered quarterly; (3b) ~~within ninety~~ together with the financial reporting package described in (90a) above, evidence of payment and satisfaction of all payroll, withholding and similar taxes due and owing by the Credit Parties with respect to the payroll period(s) occurring during such month; (c) (x) prior to any initial public offering with respect to B▇▇▇▇▇▇▇’s equity interests as soon as available, but no later than one hundred twenty (120) days after the ~~end~~ last day of ~~each~~ B▇▇▇▇▇▇▇’s fiscal ~~year of~~ year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the ~~Borrower, commencing~~ financial statements from an independent certified public accounting firm acceptable to Agent in its reasonable discretion (except for a qualification solely related to a going concern or with respect to any Debt which matures within twelve months from the time such opinion is delivered) or (y) following any such initial public offering, within fifteen (15) days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Public Reporting Entity for such fiscal year ~~ending December 31~~containing the information that would have been required to be contained in an annual report on Form 10-K (or any successor or comparable form) if the Public Reporting Entity had been a reporting company under the Exchange Act, ~~2024~~except to the extent permitted to be excluded by the SEC; (d) within five (5) days of delivery or filing thereof, copies of all statements, reports and notices made available to the Borrower Representative’s security holders, to the ABL Agent or to any holders of Subordinated Debt and copies of all reports and other filings made by a Credit Party with any stock exchange on which any securities of any Credit Party are traded and/or the SEC; (e) a prompt written notice of any legal actions pending against any Credit Party or any Subsidiaries thereof that could reasonably be expected to result in damages or costs to any Credit Party or any of Subsidiaries thereof equal to or in excess of $10,000,000 or may be reasonably expected to result in a Material Adverse Effect; (f) prompt written notice of an event that materially and adversely affects the value of any material Intellectual Property owned by a Credit Party; (g) promptly after the same become available, copies of any amendments, waivers or other modifications of or relating to the ABL Documents, Term Loan Documents or the Exit Notes and the Exit Notes Indenture; (h) budgets, sales projections, operating plans and other financial information and information, reports or statements regarding the Credit Parties, their business and the Collateral as Agent may from time to time reasonably request; (i) along with the monthly reports delivered pursuant to Section 4.1(a) above, evidence reasonably satisfactory to Agent of each Credit Party’s compliance with any payment plan or arrangement with any taxing authority with respect to Priority Tax Claims (as defined in the Plan of Reorganization), including copies of payment confirmations, material correspondence with taxing authorities and a schedule of outstanding Priority Tax Claims; (j) concurrently with the delivery thereof to the ABL Agent, an updated Schedule 1.1 to the ABL Agreement identifying the credit ratings of Investment Grade Account Debtors (as defined in the ABL Agreement)used in determination of Eligible Investment Grade Billed Accounts (as defined in the ABL Agreement); (k) within thirty (30) days after the last day of each month, together with the monthly financial statements described in clause (a) above, a ~~consolidated budget for~~ duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the ~~following fiscal year on a quarterly basis as customarily prepared by management~~ financial covenants set forth in this Agreement; (l) promptly upon their becoming available, copies of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower~~ all Swap Contracts and ~~its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income~~Material Contracts, in each ~~case,~~ case that are required to be publicly filed; (m) concurrently with the delivery of the Borrowing Base Certificate to the ~~extent prepared by management of the Borrower and included in such consolidated budget)~~ABL Agent, ~~which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation~~ delivery of such ~~projected financial statements (it being understood that any such projections are not to be viewed as facts~~Borrowing Base Certificate signed by a Responsible Officer, ~~are subject to significant uncertainties and contingencies~~together with all information, ~~many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized~~calculations, ~~that actual results may differ and that such differences may be material)~~supporting documentation or other documentation or information delivered therewith; and (4n) ~~[reserved]~~thirty (30) days’ advance written notice (or as much advance notice is as reasonably practicable) of a payoff of the ABL Agreement initiated by the Borrowers under the ABL Agreement. ~~Further~~At the option of the Borrowers, the ~~Borrower shall conduct live quarterly conference calls that~~ Borrowers may make available to Agent and such requesting Lenders the ~~Lenders may attend~~ information required to ~~discuss~~ be provided pursuant to clause (c) of the ~~financial condition and results~~ immediately preceding paragraph by posting such information to its website (or the website of ~~operations~~ any of the Borrower Representative’s parent companies, including the Public Reporting Entity) on IntraLinks or any comparable online data system or website to which each Lender and ~~its Subsidiaries for~~ Agent have access; provided, that the ~~most recently ended measurement period for~~ Borrower Representative shall notify (which ~~financial statements have been delivered pursuant~~ may be by electronic mail) Agent of the posting of any such documents and provide to ~~Section 6.01(1~~Agent by electronic mail electronic versions (i.e., soft copies) ~~and Section 6.01(2),~~ of such documents. If at any time the Borrowers or any direct or indirect parent of the Borrowers has made a ~~date and time~~ good faith determination to ~~be determined by Borrower in consultation~~ file a registration statement with the ~~Administrative Agent after delivery~~ SEC with respect to an initial public offering of such ~~financial statements. Such live quarterly conference calls~~ entity’s equity interests, the Borrowers will ~~review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders~~not be required to disclose any information or take any actions that, in the good faith view of the Borrowers would violate the securities laws or the SEC’s “gun jumping” rules. Notwithstanding the foregoing, (A) neither the ~~obligations referred~~ Credit Parties nor another Public Reporting Entity will be required to ~~in Sections 6.01(1~~deliver any information, certificates or reports that would otherwise be required by (i) ~~and 6.01(2~~Section 302 or Section 404 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) ~~may be satisfied~~ Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3- 09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, Form 10-Q or Form 8-K (or any successor or comparable forms) or related rules under Regulation S-K and (C) such reports shall not be required to present compensation or beneficial ownership information. The financial statements, information and other documents required to be provided as described in clause (c) of the first paragraph of this Section 4.1 may be those of (i) the Borrower Representative and its Subsidiaries ~~by furnishing~~ (Aon a combined basis) ~~the applicable financial statements of any Parent Company~~ or (Bii) any direct or indirect parent of all of the ~~Borrower’s or~~ Credit Parties (any such ~~Parent Company’s Form 10-K or 10-Q~~entity, ~~as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01~~a “Public Reporting Entity”); ~~provided that with respect~~ provided, that, if the financial information so delivered relates to ~~each~~ such direct or indirect parent of the ~~preceding clauses (A) and (B), (1) to~~ Credit Parties the ~~extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information~~ same is accompanied by consolidating ~~information~~ financial statements (~~which need not be audited~~including statements of cash flows) that ~~explains~~ explain in reasonable detail the differences between the information relating to such ~~Parent Company and its Independent Assets or Operations~~parent, on the one hand, and the information relating to the Borrower Representative and ~~the consolidated~~ its Subsidiaries on a ~~stand-alone~~ standalone basis, on the other ~~hand and (2)~~ hand, for the applicable period. Notwithstanding any of the foregoing herein, to the extent any of the Credit Parties’ parent companies is subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act, such information is described in ~~lieu~~ this paragraph shall be included in the Form 10-K reports of the Public Reporting Entity described in clause (c) of the first paragraph of this Section 4.1 filed with the SEC. Notwithstanding the foregoing, the Credit Parties will be deemed to have delivered such reports and information referred to in this Section 4.1 to the Lenders and Agent for all purposes of this Agreement if the Credit Parties or another Public Reporting Entity has filed such reports with the SEC via the E▇▇▇▇ filing system (or any successor system) and such reports are publicly available. In addition, except as required by the last sentence of the immediately preceding paragraph, the requirements of this Section 4.1 shall be deemed satisfied and the Credit Parties will be deemed to have delivered such reports and information referred to this Section 4.1 to Agent, holders, prospective investors, market makers and securities analysts for all purposes of this Agreement by the posting of reports and information that would be required to be provided ~~under Section 6.01(1~~on the Borrower’s website (or that of any of the Credit Parties’ parent companies, including the Public Reporting Entity). Agent shall have no obligation to monitor whether the Credit Parties post such reports, information and documents on the Borrower’s website (or that of any of the Credit Parties’ parent companies, including the Public Reporting Entity) ~~(it being understood that~~ or the SEC’s E▇▇▇▇ service, or collect or re-post any such information ~~may be audited at the option~~ from any Credit Party (or any of the ~~Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing~~ Credit Parties’ parent companies) website or ~~another accounting firm reasonably acceptable to~~ the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.SEC’s E▇▇▇▇ service.\

Appears in 1 contract

Sources: Credit and Security Agreement (XBP Global Holdings, Inc.)

Financial Statements and Other Reports. ~~Deliver~~ Borrower will furnish or cause to be furnished financial statements and other monthly, quarterly or other periodic reports to Lead Agent and each of Lenders with respect to the ~~Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders~~ Consolidated Group as ~~described in Section 6.02) each of the following~~follows: (1a) within ninety (90) days after the ~~end~~ close of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ consolidated audited balance ~~sheet of the Borrower~~ sheets and ~~its Subsidiaries as at the end of such fiscal year, and the related~~ audited consolidated statements of ~~operations~~ income, retained earnings and cash flows (the "Financial Statements") for such ~~fiscal~~ year, ~~together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~and, setting forth in ~~each case in~~ comparative form the corresponding figures for the ~~previous fiscal~~ preceding year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted ~~auditing standards~~ accounting principles consistently applied, accompanied by a report and ~~(b) will not be subject to any qualification as to the scope~~ unqualified opinion of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant)Pricewaterhouse; (2b) within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year, the unaudited consolidated balance sheet, consolidated income statement and a consolidated statement of cash flows similar to those required by clause (a) above (but with a requirement as to comparison with the prior year) as of the ~~first three~~ end of such Fiscal Quarter and for the Fiscal Quarter from the beginning of the current Fiscal Year to the end of such Fiscal Quarter, prepared in accordance with generally accepted accounting principles consistently applied and certified as to preparation in accordance with generally accepted accounting principles and that such statements fairly present the financial condition of the Consolidated Group at the dates thereof and for the periods then ended, on behalf of Borrower by its chief financial officer, subject only to changes resulting from audit and normal year-end adjustments; (3c) ~~fiscal quarters~~ at the delivery of each ~~fiscal year~~ quarterly and annual statement, a detailed computation showing compliance with the Financial Covenants certified by the chief financial officer of Borrower or other designated officer of Borrower acceptable to Lead Agent in the form of Exhibit E attached hereto ("Compliance Certificate"), and further certifying that such officer has caused this Agreement to be reviewed and has no knowledge of any Default by it in the performance or observance of any of the ~~Borrower commencing with September 30~~provisions hereof, ~~2024, a consolidated balance sheet of the Borrower and its Subsidiaries as~~ during such quarter or at the end of such ~~fiscal quarter~~year, or, if such officer has such knowledge, specifying each Default and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrowernature thereof; (3d) a report from Pricewaterhouse certifying, without material qualification, (i) within ninety (90) days ~~after~~ of the end of each ~~fiscal~~ Fiscal Year, the compliance by Borrower with the Financial Covenants, and the accuracy of the year-end Borrowing Base Report, and (ii) such other financial matters relating to Borrower as Lead Agent from time to time reasonably requests; (e) promptly upon receipt thereof or at Lead Agent's request, copies of all management letters, which are submitted to Borrower by its independent accountants in connection with any annual or interim audit of any member of the Consolidated Group's books of the Consolidated Group made by such accountants; (f) a Borrowing Base Report in such form and at such times specified in Section 10.11; (g) on or before January 31 of each year, a budget for such year for the Consolidated Group and on or before February 28 of each year, a two (2) year projected balance sheet, income statement, cash flow statement and Financial Covenants; (h) within five (5) Business Days of the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrower, ~~commencing with respect to~~ including without limitation, each Form 10-K and Form 10-Q; (i) not later than ten (10) Business Days after the ~~fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ Borrower receives notice of the ~~Borrower for its internal use (including any projected consolidated balance sheet~~ same from either of the ~~Borrower and its Subsidiaries as~~ Rating Agencies or otherwise learns of the ~~end~~ same, notice of the ~~following fiscal year and~~ issuance of any change in the ~~related consolidated statements of projected income, in each case, to the extent prepared~~ Debt Rating by ~~management~~ either of the ~~Borrower~~ Rating Agencies, together with the details thereof, and ~~included in such consolidated budget), which projected financial statements shall be prepared in good faith on~~ of any announcement by either of the ~~basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood~~ Rating Agencies that any such ~~projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control~~ Debt Rating is "under review" or that any such Debt Rating has been placed on a watch list or that any similar action has been taken by either of the ~~Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material~~Rating Agencies (collectively a "Rating Notice"); and (4j) ~~[reserved]. Further~~such other periodic reports, ~~the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the~~ financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2)statements, ~~at a date and~~ other information as Lead Agent from time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operationstime reasonably requests, on ~~the one hand~~a monthly, quarterly or other periodic basis, including, without limitation, periodic reports of financial information, construction progress, inventory, marketing and sales results, and ~~the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis~~compliance with financial, ~~on the~~ environmental or other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementscovenants.

Appears in 1 contract

Sources: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)

Financial Statements and Other Reports. ~~Deliver~~ Borrower shall promptly deliver, or cause to be delivered to the Administrative Agent ~~for prompt further distribution by~~ (and the Administrative Agent shall deliver, or caused to ~~each Lender (subject~~ be delivered to the ~~limitations on distribution~~ Lenders promptly following receipt thereof): (a) as soon as reasonably available and in any event within one hundred eighty (180) days after the end of ~~any such information to Public Lenders~~ each Fiscal Year, audited financial statements of Parent, including a consolidated balance sheet of Parent as ~~described in Section 6.02) each~~ of the ~~following:~~end of such Fiscal Year and the related consolidated statements of operations for such fiscal year; (1i) as soon as available and in any event within ninety (90) days after the end of each ~~fiscal year~~ semi-annual accounting period in each Fiscal Year, unaudited financial statements of ~~the Borrower~~Parent, ~~commencing with the fiscal year ending December 31, 2024,~~ including a consolidated balance sheet of ~~the Borrower and its Subsidiaries~~ Parent as at of the end of such ~~fiscal year,~~ semi-annual period and the related consolidated statements of operations ~~and cash flows~~ for such ~~fiscal year, together with related notes thereto~~ semi-annual period and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) as soon as available and in any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) event within ninety (90) days after the end of the first and third fiscal quarters of each ~~fiscal year~~ Fiscal Year, copies of (x) unaudited trial balances of the Sponsor Parties and (y) the Parent’s filed Form N-PORT, (which shall include a Regulation S-X compliant schedule of investments); (c) together with the delivery of the financial information required pursuant to Section 7.01(a) and (b) above, a certificate (“Compliance Certificate”) of a Responsible Officer of Parent, substantially in the form of Exhibit D attached hereto: (i) stating that, to the knowledge of such officer, no Default or Event of Default exists; (ii) identifying each Portfolio Investment funded, acquired or sold, and the amounts thereof, and all Distributions received by each Sponsor Party in respect of the Portfolio Investments during such quarter; (iii) either including a certification that there have been no changes to Schedule 4.13, or providing an updated Schedule 4.13 (including look-through details for any Portfolio Investments that are fund of Private Equity Funds to the extent such look-through details are available to the applicable Sponsor Party (it being understood that the applicable Sponsor Party shall use commercially reasonable efforts to obtain such look-through details)); (iv) stating that each Sponsor Party is in compliance with the covenants set forth in this Agreement, including the Minimum NAV test set forth in Section 8.14, and containing the calculations evidencing such compliance; (v) stating that the representations and warranties of each Loan Party contained in Article 4, are true and correct in all material aspects on and as of the date thereof, except to the extent that such representations and warranties specifically refer to an earlier date in which case they shall be true and correct as of such earlier date; and (vi) certifying that such financial statements fairly present in all material respects, the financial condition and the results of operations of each Sponsor Party on the dates and for the periods indicated, on the basis of GAAP, subject, in the case of interim financial statements, to normally recurring year-end adjustments; (d) on or before twenty (20) Business Days after the end of each month, a certificate (“Borrowing Base Certificate”) of a Responsible Officer of Borrower, ~~commencing with respect to~~ substantially in the ~~fiscal year ending December 31, 2024,~~ form of Exhibit E attached hereto (i) setting forth a ~~consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ calculation of the ~~Borrower for its internal use~~ Borrowing Base (including ~~any projected consolidated balance sheet~~ the cash and Cash Equivalents of each Loan Party deposited in the ~~Borrower~~ Collateral Accounts) and ~~its Subsidiaries~~ the Loan to Value Ratio (as of the end of the ~~following fiscal year~~ immediately preceding month (as reflected in Borrower’s internal records on the last Business Day immediately preceding the date such Borrowing Base Certificate is delivered) and as calculated by Borrower in accordance with the ~~related consolidated statements~~ Parent Valuation Policy), (ii) setting forth (1) if a shareholder repurchase request expired during the immediately preceding month, the aggregate amount of ~~projected income,~~ repurchases by Investors in ~~each case,~~ the Parent of Equity Interests in the Parent pursuant to such repurchase request and (2) the ~~extent prepared~~ aggregate amount of redemptions by ~~management~~ Investors in the Parent of Equity Interests in the Parent during the twelve (12) month period ended on the last day of such month expressed as a percentage of the ~~Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on~~ “net asset value” of the ~~basis~~ Parent as of ~~assumptions believed to be reasonable at~~ the ~~time of preparation~~ first day of such ~~projected financial statements~~ twelve (~~it being understood that~~ 12) month period, (iii) setting forth any Capital Calls and Capital Contributions made for any Eligible Investment during the immediately preceding month and (iv) setting forth all Portfolio Investment Purchase Obligations as of the date of such ~~projections are not to be viewed as facts~~certificate; (e) promptly following any reasonable request therefor from the Administrative Agent, ~~are~~ subject to ~~significant uncertainties~~ any confidentiality obligations of the applicable Sponsor Party thereunder, (i) copies of any information or reports furnished to Investors under any Portfolio Document as so requested by the Administrative Agent, including valuation reports and ~~contingencies~~other reports providing for calculation of the “net asset value” or other valuations by the Issuer or Private Equity Investment Sponsor of such Portfolio Investment and (ii) Portfolio Documents or amendments thereto; (f) promptly, ~~many~~ such additional information regarding the business, financial, legal or corporate affairs of ~~which are beyond~~ any Sponsor Party, or compliance with the ~~control~~ terms of the Loan ~~Parties and that no assurance can be given that any particular projections will be realized~~Documents, ~~that actual results~~ as the Administrative Agent may ~~differ and that such differences may be material)~~from time to time reasonably request; and (4g) ~~[reserved]. Further~~promptly, upon the ~~Borrower shall conduct live quarterly conference calls that the Lenders may attend~~ assets of any Sponsor Party including, or being reasonably expected to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2)include, at Plan Asset, a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied written notice with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsthereto.

Appears in 1 contract

Sources: Credit Agreement (Franklin Lexington Private Markets Fund)

Financial Statements and Other Reports. ~~Deliver~~ Guarantor will deliver or cause to ~~the Administrative~~ be delivered to Agent (with sufficient copies for ~~prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02)~~ each of the ~~following~~Participants) and to Lessor: (1A) as soon as available and in any event within ninety (90) days after the end of each fiscal year of ~~the Borrower~~Guarantor, ~~commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet~~ an audited statement of ~~the Borrower~~ financial position of Guarantor and its consolidated Subsidiaries as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ income, shareholder's equity and cash flows for such fiscal year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the figures for the previous fiscal year, ~~in reasonable detail and~~ all ~~prepared in accordance with GAAP, audited and~~ accompanied by ~~a report and~~ the unqualified opinion of an Ernst & Young L.L.P. or other independent ~~registered~~ public ~~accounting firm~~ accountants of nationally recognized standing ~~or another accounting firm reasonably acceptable~~ stating that such consolidated financial statements present fairly the financial position of Guarantor and its consolidated Subsidiaries for the periods indicated, in conformity with GAAP, and applied on a basis consistent with prior years; together with an unaudited Responsible Officer's Certificate containing a computation of, and showing compliance with, each of the financial ratios and restrictions contained in Section 10(c) and to the ~~Administrative Agent~~effect that the Responsible Officer executing such certificate is not aware of any Guarantee Event of Default that has occurred and is continuing, ~~which report~~ or if such officer is aware of any such Guarantee Event of Default, describing it and ~~opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject~~ the steps, if any, being taken to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant)cure it; (2B) as soon as available and in any event within forty-five (45) days after the end of each of the first three ~~(3) fiscal~~ quarters of each fiscal year of ~~the Borrower commencing with September 30, 2024~~Guarantor, a consolidated ~~balance sheet~~ statement of ~~the Borrower and its Subsidiaries~~ financial position of Guarantor as at of the end of such ~~fiscal quarter,~~ quarter and the related ~~(a)~~ consolidated ~~statement~~ statements of ~~operations~~ income and cash flows for such ~~fiscal~~ quarter and for the portion of ~~the~~ Guarantor's fiscal year ~~then~~ ended at the end of such quarter, together with an unaudited Responsible Officer's Certificate containing a computation of, and ~~(b) consolidated statement of cash flows for the portion~~ showing compliance with, each of the ~~fiscal year then ended~~financial ratios and restrictions contained in Section 10(c) and that no Guarantee Event of Default has occurred or is continuing or, ~~setting forth~~if any Guarantee Event of Default has occurred and is continuing, describing it and the steps, if any, being taken to cure it; (C) if, as a result of any change in ~~each case~~ accounting principles and policies from those used in the preparation of the ~~preceding clauses (a) and (b)~~Historical Financial Statements, ~~in comparative form~~ the ~~figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such~~ consolidated financial statements ~~fairly present in all material respects the financial condition, results~~ of ~~operations and cash flows of the Borrower~~ Guarantor and its Subsidiaries delivered pursuant to Sections 10(a)(iv)(A) or 10(a)(iv)(B) will differ in ~~accordance with GAAP, subject to normal year-end adjustments and~~ any material respect from the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements ~~shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood~~ that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements would have been delivered pursuant to ~~Section 6.01(1)~~ such Sections had no such change in accounting principles and ~~Section 6.01(2)~~policies been made, ~~at a date and time to be determined by Borrower in consultation~~ then together with the ~~Administrative Agent after~~ first delivery of such financial statements after such change a statement of reconciliation for all such prior financial statements in form and substance satisfactory to the Required Participants; (D) promptly upon transmission or receipt thereof, copies of any filings and registrations with, and reports to or from, the Securities and Exchange Commission, or any successor agency, and copies of all financial statements, proxy statements, notices and reports as Guarantor or any of its Subsidiaries shall send to a holder of any Indebtedness having a principal amount in excess of $15,000,000 or more owed by Guarantor or such Subsidiary in its capacity as such a holder, subject to any applicable confidentiality obligations of Guarantor or such Subsidiary; (E) promptly upon any Responsible Officer of Guarantor obtaining knowledge (i) of the occurrence and continuance of any condition or event that constitutes a Guarantee Default or a Guarantee Event of Default; or (ii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, Guarantor will provide written notice thereof. ~~Such live quarterly conference calls~~ In addition, concurrently with such written notice by Guarantor, or promptly following Guarantor's receipt of notice from Agent, Lessor or any Participant that a Guarantee Default or a Guarantee Event of Default has occurred, Guarantor shall deliver a certificate of a Responsible Officer specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by Guarantor and the nature of such claimed Guarantee Event of Default, Guarantee Default, event or condition, and what action Guarantor has taken, is taking or proposes to take with respect thereto; (F) promptly upon any Responsible Officer of Guarantor obtaining knowledge thereof, Guarantor will ~~review business performance~~ give written notice to Agent of the institution of any Adverse Proceeding not previously disclosed in writing by Guarantor to Lessor, Agent and ~~key performance indicators~~ the Participants and which (i) individually or in the aggregate if adversely determined would reasonably be expected to have a Material Adverse Effect, or (ii) prohibits Guarantor from performing any material obligation under the SanDisk Tranche Operative Documents to which it is a party; (G) (i) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) upon request of Agent and with reasonable promptness, copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Agent shall reasonably request; (H) promptly, written notice of any change in either ▇▇▇▇▇'▇ or S&P's rating for Guarantor's long term Indebtedness, if applicable; and (I) Guarantor and its Material Subsidiaries shall at all times in all material respects keep proper books of record and account in which full, true and correct entries will ~~include question~~be made of their transactions in accordance with GAAP; (J) from time to time with reasonable promptness, such other information or documents (financial or otherwise) with respect to Guarantor and its Subsidiaries, or with respect to the status of any matter disclosed pursuant to Section 10(a)(iv)(F), as Agent, Lessor or any Participant through Agent may reasonably request, subject to any applicable confidentiality obligations of Guarantor and provided that in the case of information pertaining to a matter disclosed pursuant to Section 10(a)(iv)(F), Guarantor shall not be required to disclose any such information if such disclosure would, in the reasonable judgment of Guarantor, constitute a waiver by Guarantor of its attorney-~~and-answer sessions for public-side and private-side Lenders. Notwithstanding~~ client privilege or any applicable work product privilege with respect to such matter. (K) notwithstanding the foregoing, the ~~obligations referred to in Sections 6.01(1) and 6.01(2~~requirement for delivery of financial statements under Section 10(a)(iv) may be satisfied ~~with respect to financial information~~ by delivery of ~~the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements~~ a copy of ~~any Parent Company or (B) the Borrower’s or such Parent Company’s Form~~ Forms 10-K or 10-Q, Q as ~~applicable,~~ the case may be as filed by Guarantor with the SEC for the most recent fiscal year or fiscal quarter then ended. Guarantor may remit its financial statements via electronic format through delivery by e-mail or otherwise; (~~and~~ L) in the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to event (i) Guarantor acquires or creates any Subsidiary after the ~~impending maturity of the Facilities~~Document Closing Date which is a Material Subsidiary, or (ii) any ~~anticipated inability to satisfy~~ current Subsidiary (which is not a Material Subsidiary as of the ~~Financial Covenant~~ Document Closing Date) becomes a Material Subsidiary after such date, or (iii) ~~except in~~ any Material Subsidiary identified on the ~~case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required~~ Document Closing Date ceases to be ~~delivered pursuant~~ a Material Subsidiary, Guarantor shall provide written notice thereof to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.Agent as promptly as practicable; and [*]

Appears in 1 contract

Sources: Guarantee (Sandisk Corp)

Financial Statements and Other Reports. ~~Deliver~~ DreamWorks Animation shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingHBO: (1a) as soon as available, but in any event within ~~ninety (90)~~ 90 days after the end of each fiscal year of ~~the Borrower, commencing with the fiscal year ending December 31, 2024~~DreamWorks Animation, a ~~consolidated~~ copy of the Consolidated balance sheet of ~~the Borrower~~ DreamWorks Animation and its Consolidated Subsidiaries as at the end of such ~~fiscal year,~~ year and the related ~~consolidated~~ Consolidated statements of ~~operations~~ income and retained earnings and of cash flows for such ~~fiscal~~ year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the figures for the previous ~~fiscal~~ year, ~~in reasonable detail and all prepared in accordance with GAAP~~reported on without qualification, ~~audited and accompanied~~ by ~~a report and opinion of an~~ independent ~~registered~~ certified public ~~accounting firm~~ accountants of nationally recognized ~~standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and~~ standing; (b) ~~will~~ as soon as available, but in any event not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) later than 45 days after the end of each of the first three ~~(3) fiscal quarters~~ quarterly periods of each fiscal year of ~~the Borrower~~ DreamWorks Animation (commencing with the fiscal quarter ending on September 30, ~~2024~~2004), a ~~consolidated~~ copy of the unaudited Consolidated balance sheet of ~~the Borrower~~ DreamWorks Animation and its Consolidated Subsidiaries as at the end of such ~~fiscal quarter,~~ quarter and the related ~~(a) consolidated statement~~ unaudited Consolidated statements of ~~operations~~ income and retained earnings and of cash flows of DreamWorks Animation and its Consolidated Subsidiaries for such ~~fiscal~~ quarter and ~~for~~ the portion of the fiscal year ~~then ended and (b) consolidated statement~~ through the end of ~~cash flows for the portion of the fiscal year then ended~~such quarter, setting ~~forth,~~ forth in each case ~~of the preceding clauses (a) and (b),~~ in comparative form the figures for the ~~corresponding fiscal quarter~~ previous year; (c) within 15 days after the delivery of the ~~previous fiscal year and the corresponding portion~~ financial statements referred to in SECTION 5.01(A), a certificate of the ~~previous fiscal year~~independent certified public accountants reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, ~~accompanied by~~ except as specified in such certificate; (d) concurrently with the delivery of the financial statements referred to in SECTION 5.01(A) and within 15 days after the delivery of the financial statements referred to in SECTION 5.01(B), a certificate of an ~~Officer’s Certificate~~ Authorized Officer (1) stating that such Authorized Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate; (2) including calculations in reasonable detail with respect to compliance with SECTION 5.05 and SECTION 5.07; and (3) certifying that the financial statements delivered for such period are fairly ~~present~~ stated in all material respects (subject to normal year end adjustments); (e) concurrently with the delivery of the financial ~~condition~~statements referred to in SECTION 5.01(A) and within 15 days after the delivery of the financial statements referred to in SECTION 5.01(B), ~~results of operations~~ projections in form and scope reasonably acceptable to HBO for the Test Period commencing immediately after the fiscal period covered by such financial statements, including an operating budget and cash ~~flows~~ flow budget of ~~the Borrower~~ DreamWorks Animation and its Subsidiaries for such period and sufficient information in ~~accordance with GAAP~~reasonable detail to support the calculation of Projected Sources and Projected Uses for such Test Period, ~~subject~~ such projections to ~~normal year-end adjustments~~ be accompanied by a certificate of an Authorized Officer to the effect that such projections have been prepared on the basis of sound financial planning practice and ~~the absence of footnotes, together with management’s discussion and analysis describing results of operations~~ that such Authorized Officer has no reason to believe they are incorrect or misleading in ~~the form customarily prepared by management of the Borrower~~any material respect; (3f) ~~within ninety (90) days~~ promptly after the ~~end~~ same become publicly available, copies of ~~each fiscal year~~ all periodic reports, proxy statements and other materials filed by DreamWorks Animation or any of its Subsidiaries with the ~~Borrower~~Securities and Exchange Commission (or any successor thereto) or any national securities exchange, ~~commencing~~ or distributed by DreamWorks Animation or any of its Subsidiaries to its security holders generally, as the case may be; and (g) with reasonable promptness, such other information and data with respect to ~~the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ DreamWorks Animation or any of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and~~ its Subsidiaries as ~~of the end of the following fiscal year~~ from time to time may be reasonably requested by HBO. All such financial and ~~the related consolidated~~ other statements ~~of projected income,~~ shall be complete and correct in ~~each case, to the extent~~ all material respects and shall be prepared ~~by management of the Borrower and included~~ in reasonable detail. All such ~~consolidated budget), which projected~~ financial statements shall be prepared in ~~good faith on~~ accordance with GAAP applied consistently throughout the ~~basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements~~ periods reflected therein (~~it being understood that any such projections are not to be viewed~~ except as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined approved by ~~Borrower in consultation with the Administrative Agent after delivery of~~ such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company Authorized Officer or ~~(B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q~~accountants, as ~~applicable, filed with~~ the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one handcase may be, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrowerdisclosed therein), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.

Appears in 1 contract

Sources: Subordinated Loan Agreement (DreamWorks Animation SKG, Inc.)

Financial Statements and Other Reports. ~~Deliver~~ Company will deliver to ~~the Administrative~~ Global Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingand Lenders: (1) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) ~~will be prepared~~ as soon as available and in ~~accordance with generally accepted auditing standards and (b) will not be subject to~~ any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) event within forty-five (45) days after the end of each of the first three ~~(3) fiscal quarters~~ Fiscal Quarters of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower commencing with September 30, 2024, a~~ consolidated balance sheet of ~~the Borrower~~ Company and its Subsidiaries as at the end of such ~~fiscal quarter,~~ Fiscal Quarter and the related ~~(a)~~ consolidated ~~statement~~ statements of ~~operations~~ income, stockholders' equity and cash flows of Company and its Subsidiaries for such ~~fiscal quarter~~ Fiscal Quarter and for the ~~portion~~ period from the beginning of the ~~fiscal year~~ then ~~ended and (b) consolidated statement~~ current Fiscal Year to the end of ~~cash flows for the portion of the fiscal year then ended~~such Fiscal Quarter, setting ~~forth,~~ forth in each case ~~of the preceding clauses (a) and (b),~~ in comparative form the corresponding figures for the corresponding ~~fiscal quarter~~ periods of the previous ~~fiscal year and the corresponding portion of the previous fiscal year~~Fiscal Year, ~~accompanied by an Officer’s Certificate stating that such financial statements fairly present~~ all in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotesreasonable detail, together with ~~management’s discussion~~ a Financial Officer Certification and ~~analysis describing results of operations in the form customarily prepared by management of the Borrower~~a Narrative Report with respect thereto; (3b) as soon as available and in any event within ninety (90) days after the end of each ~~fiscal year of~~ Fiscal Year, (i) the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of ~~the Borrower~~ Company and its Subsidiaries as of at the end of ~~the following fiscal year~~ such 104 Fiscal Year and the related consolidated statements of ~~projected~~ income, ~~in each case, to the extent prepared by management~~ stockholders' equity and cash flows of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower Company and its Subsidiaries for such Fiscal Year in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Company, together with a written statement by such independent certified public accountants stating (1) that their audit examination has included a review of the ~~most recently ended measurement~~ terms of the Credit Documents, (2) whether, in connection therewith, any condition or event that constitutes a Default or an Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period ~~for which~~ of existence thereof, and (3) that nothing has come to their attention that causes them to believe either or both that the information contained in any Compliance Certificate is not correct or that the matters set forth in such Compliance Certificate are not stated in accordance with the terms hereof; (c) together with each delivery of financial statements of Company and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate; (d) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Company and its Subsidiaries delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(i) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to ~~Section 6.01(1)~~ such subdivisions had no such change in accounting principles and ~~Section 6.01(2)~~policies been made, ~~at a date and time to be determined by Borrower in consultation~~ then together with the ~~Administrative Agent after~~ first delivery of such financial statements after such change a statement of reconciliation for all such prior financial statements in form and substance satisfactory to Requisite Lenders; (e) promptly upon their becoming available, copies of (i) all financial statements~~. Such live quarterly conference calls will review business performance~~ , reports, notices and ~~key performance indicators~~ proxy statements sent or made available generally by Company to its Security holders acting in such capacity or by any Subsidiary of Company to its Security holders other than Company or another Subsidiary of Company, (ii) all regular and ~~will include question-and-answer sessions for public-side~~ periodic reports and ~~private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1~~all registration statements (other than on Form S-8 or a similar form) and ~~6.01(2~~prospectuses, if any, filed by Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority, and (iii) ~~may be satisfied~~ all press releases and other statements made available generally by Company or any of its Subsidiaries to the public concerning material developments in the business of Company or any of its Subsidiaries; (f) promptly upon any officer of Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Company by any Lender or Agent with respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other action with respect to ~~financial information~~ any event or condition set forth in Section 8.1(b); (iii) of any condition or event of a type required to be disclosed in a current report on Form 8-K of the ~~Borrower~~ Securities and Exchange Commission (excluding Item 3 as in effect on the date hereof); or (iv) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, 105 event or condition, and what action Company has taken, is taking and proposes to take with respect thereto; (g) promptly upon any officer of Company obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Company to enable Lenders and their counsel to evaluate such matters; (i) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by ~~furnishing~~ the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (Aii) upon request of Global Agent and with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the ~~applicable financial statements~~ annual report (Form 5500 Series) filed by Company, any of its Subsidiaries or any ~~Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed~~ of their respective ERISA Affiliates with the ~~SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that~~ Internal Revenue Service with respect to each Pension Plan; (2) all notices received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Global Agent shall reasonably request; (i) at any time either (i) Mood▇'▇ ▇▇▇ assigned to Company's long term Indebtedness for borrowed money a rating of lower than Baa3, or (ii) S&P has assigned to Company's long term Indebtedness for borrowed money a rating of lower than BBB-, as soon as practicable and in any event no later than forty five (45) days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year (a "Financial Plan"), including a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for such Fiscal Year, together with pro forma Compliance Certificates for such Fiscal Year and an explanation of the ~~preceding clauses~~ assumptions on which such forecasts are based; (Aj) as soon as practicable and in any event by the last day of each Fiscal Year, a report in form and substance satisfactory to Global Agent outlining all material insurance coverage maintained as of the date of such report by Company and its Subsidiaries and all material insurance coverage planned to be maintained by Company and its Subsidiaries in the immediately succeeding Fiscal Year; (B)k) with reasonable promptness, written notice of any change in the Board of Directors of Company; (1l) promptly, and in any event within ten (10) Business Days after any Material Contract of Company or any of its Subsidiaries is terminated or amended in a manner that is materially adverse 106 to Company or such Subsidiary, as the case may be, or any new Material Contract is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Global Agent (to the extent such ~~information relates to a Parent~~ delivery is permitted by the terms of any such Material Contract, provided, no such prohibition on delivery shall be effective if it were bargained for by Company or its applicable Subsidiary with the intent of ~~the Borrower~~avoiding compliance with this Section 5.1(l)), if and so an explanation of any actions being taken with respect thereto; (m) promptly, written notice of any change in either Mood▇'▇ ▇▇ S&P's rating for Company's long ~~as such Parent Company will have Independent Assets or Operations~~term Indebtedness; and (n) with reasonable promptness, such other information ~~is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating~~ and data with respect to ~~such Parent~~ Company ~~and~~ or any of its ~~Independent Assets or Operations, on the one hand, and the information relating~~ Subsidiaries as from time to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information time may be ~~audited at the option of the Borrower), such materials are accompanied~~ reasonably requested by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsLender.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Stryker Corp)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower will deliver to the Administrative Agent (with a copy for ~~prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02)~~ each of the ~~following~~Lenders) : (1i) as soon as possible, but, in any case, within ~~ninety~~ 120 (90one hundred and twenty) calendar days ~~after~~ following the ~~end~~ close of each fiscal year of the Borrower, ~~commencing with~~ a copy of the ~~fiscal year ending December 31~~individual and consolidated audited financial statements, ~~2024~~if applicable, ~~a consolidated balance sheet~~ of the Borrower ~~and its Subsidiaries as at the end of such~~ corresponding to said fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with ~~GAAP~~IFRS, ~~audited~~ including the balance sheet, income statement, cash flow statement and changes in the Borrower's stockholders' equity for said fiscal year, accompanied by an opinion issued by a ~~report and opinion~~ office of an independent ~~registered~~ public ~~accounting firm of nationally recognized standing or another accounting firm reasonably~~ accountants acceptable to the Administrative Agent, ~~which report and opinion (a) will be prepared in accordance~~ together with ~~generally accepted auditing standards and (b) will not be subject to any qualification as to~~ a certificate from an Authorized Official of the ~~scope of such audit (but may contain a “going concern” or like qualification~~ Borrower, stating that ~~is due to~~ (i) the ~~impending maturity~~ Financial Obligations referred to in subsection (n) of ~~the Facilities~~this Eleventh Clause applicable in that time and includes all information and calculations necessary to determine compliance with such Financial Obligations, and (ii) ~~any anticipated inability to satisfy~~ that a Default or Cause of Early Termination has not occurred or continues, or, if a Default or Cause of Early Termination has occurred and continues, a statement regarding the ~~Financial Covenant or (iii) except in the case~~ nature of the ~~Revolving Facility~~same, ~~an actual Default of~~ as well as the ~~Financial Covenant);~~acts that have carried out and propose to carry out with respect to it; and (2ii) as soon as possible, but, in any case, within ~~forty-five~~ 60 (45sixty) calendar days ~~after~~ following the ~~end~~ close of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, ~~commencing with respect~~ (x) the individual internal financial statements of the Borrower, which include the balance sheet and income statements, statement of cash flow and changes in stockholders' equity, corresponding to the period beginning at the end of the immediately preceding fiscal year and ending ~~December 31~~at the end of said quarter, ~~2024,~~ (and) a ~~consolidated budget for~~ position report of financial instruments at the ~~following fiscal year~~ end of said quarter and (z) the report on ~~a quarterly basis as customarily prepared by management of~~ the ~~Borrower for its internal use (including any projected consolidated balance sheet~~ participation of the Borrower and ~~its Subsidiaries as of~~ Joint Obligors in the ~~end of the following fiscal year and the related consolidated statements of projected income~~Consolidated EBITDA, in ~~each case, to the extent prepared~~ all cases certified by ~~management~~ any Authorized Official of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be they were prepared in accordance with accounting principles generally accepted ~~auditing standards~~ in Mexico and, as of December 31, 2022, in accordance with IFRS, and ~~(b) will not be subject to any qualification as to~~ together with a certificate from a Fun Authorized Officer of the ~~scope of such audit (but may contain a “going concern” or like qualification~~ Borrower declaring that ~~is due to~~ (i) the ~~impending maturity~~ Financial Obligations referred to in subparagraph (n) of this Eleventh Clause applicable at that time are being fulfilled and includes all the ~~Facilities~~information and calculations necessary to determine compliance with said Financial Obligations , and (ii) ~~any anticipated inability to satisfy~~ that a Default or Cause of Early Termination has not occurred or continues, or, if a Default or Cause of Early Termination has occurred and continues, a statement regarding the ~~Financial Covenant or (iii) except in the case~~ nature of the ~~Revolving Facility~~same, ~~an actual Default of~~ as well as the ~~Financial Covenant). Any financial statements required~~ acts that have made and propose to ~~be delivered pursuant~~ make with respect to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsit.

Appears in 1 contract

Sources: Loan Agreement (Northwest Building)

Financial Statements and Other Reports. ~~Deliver~~ Subject to Section 4.06, the Company covenants that, from and after the Closing Date, it will deliver to each Purchaser: (a) as soon as practicable and in any event no later than the day that a Form 10-Q is required to be filed by the Company with the SEC following each quarterly period (other than the last quarterly period) in each fiscal year, consolidated statements of operations, statements of stockholders' equity and cash flows of the Company for the period from the beginning of the then current fiscal year to the ~~Administrative Agent~~ end of such quarterly period, and a consolidated balance sheet of the Company as of the end of such quarterly period setting forth in each case in comparative form figures for ~~prompt further distribution by~~ the ~~Administrative Agent~~ corresponding period or date in the preceding fiscal year, together with a certificate from a senior officer of the Company to ~~each Lender~~ the effect that such financial statements have been prepared in accordance with GAAP consistently applied during the periods involved (subject to year-end adjustments) and that such financial statements fairly present the ~~limitations on distribution~~ results of ~~any such information to Public Lenders as described~~ operations and changes in ~~Section 6.02) each~~ financial position, stockholders' equity, cash flows and financial position of the ~~following:~~Company and the Company Subsidiaries as of and for the period then ended (such certificate, the "SENIOR OFFICER'S CERTIFICATE"); provided, however, that delivery pursuant to Section 4.03(c) of a copy of the Company's periodic report on Form 10-Q or such period filed with the SEC shall be deemed to satisfy the requirements of this Section 4.03(a); (1b) ~~within ninety (90) days after~~ as soon as practicable and in any event no later than the day that a Form 10-K is required to be filed by the Company with the SEC following the end of each fiscal ~~year of the Borrower, commencing with the fiscal year ending December 31, 2024~~year, a consolidated balance sheet of the ~~Borrower and its Subsidiaries~~ Company as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ operations, statements of stockholders' equity and cash flows for such fiscal year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the corresponding figures ~~for~~ from the ~~previous~~ preceding fiscal year, ~~in reasonable detail and all prepared in accordance~~ together with ~~GAAP, audited and accompanied by a~~ the audit report ~~and opinion~~ of an PricewaterhouseCoopers LLP or other independent ~~registered~~ public ~~accounting firm~~ accountants of ~~nationally~~ recognized standing ~~or another accounting firm reasonably acceptable~~ selected by the Company; provided, however, that delivery pursuant to ~~the Administrative Agent, which report and opinion (a~~Section 4.03(c) ~~will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope~~ below of ~~such audit (but may contain~~ a ~~“going concern” or like qualification that is due to (i) the impending maturity~~ copy of the ~~Facilities, (ii) any anticipated inability~~ Annual Report on Form 10-K of the Company for such fiscal year filed with the SEC shall be deemed to satisfy the ~~Financial Covenant or (iii) except in the case~~ requirements of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be materialthis Section 4.03(b); and (4c) ~~[reserved]. Further~~promptly upon transmission thereof, ~~the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results~~ copies of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of all such financial statements~~. Such live quarterly conference calls will review business performance~~ , proxy statements, notices and ~~key performance indicators~~ reports as it shall send to its stockholders and ~~will include question-and-answer sessions for public-side~~ copies of all such registration statements, other than registration statements relating to employee benefit or dividend reinvestment plans, and ~~private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1)~~ all such regular and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form periodic reports on Forms 10-~~K or~~ K, 10-Q, Q and 8-K (or similar or substitute forms) as ~~applicable, filed~~ it shall file with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsSEC.

Appears in 1 contract

Sources: Preferred Stock and Warrant Purchase Agreement (Goldman Sachs Group Inc/)

Financial Statements and Other Reports. ~~Deliver~~ Company will deliver to ~~the~~ Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingand Lenders: (1i) ~~within ninety~~ Quarterly Financials: (90a) no later than 45 days after the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of the first three Fiscal Quarters of each Fiscal Year and the related consolidated statements of income and cash flows of Company, its Subsidiaries and its Unrestricted Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and (b) promptly when available but in any event no later than 60 days after the end of the first three Fiscal Quarters of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ consolidated balance sheet of ~~the Borrower~~ Company and its Subsidiaries as at the end of ~~such fiscal year,~~ each Fiscal Quarter and the related consolidated statements of ~~operations~~ income and cash flows of Company and its Subsidiaries for such ~~fiscal year, together with related notes thereto~~ Fiscal Quarter and ~~management’s discussion and analysis describing results of operations in~~ for the ~~form customarily prepared by management~~ period from the beginning of the ~~Borrower~~then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding under both clauses (a) and (b), ) above) in comparative form the corresponding figures for the corresponding ~~fiscal quarter~~ periods of the previous ~~fiscal year~~ Fiscal Year, all in reasonable detail and certified (in the ~~corresponding portion~~ case of both clauses (a) and (b) above) by the ~~previous fiscal year~~chief financial officer of Company that they fairly present, ~~accompanied by an Officer’s Certificate stating that such financial statements fairly present~~ in all material respects ~~the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries~~ in accordance with GAAP, the financial condition of Company, its Subsidiaries and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsadjustments.

Appears in 1 contract

Sources: Credit Agreement (Alliance HealthCare Services, Inc)

Financial Statements and Other Reports. ~~Deliver~~ The Company will furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingLenders: (i) Unless filed with the SEC through the ▇▇▇▇▇ System and available to the public through the ▇▇▇▇▇ system, within one (1) Business Day after the filing thereof with the SEC, a copy of its annual reports and quarterly reports on Form 10-K and 10-Q, any interim reports or any consolidated balance sheets, income statements, shareholders' equity statements and/or cash flow statements for any period, any current reports on Form 8-K and any registration statements (other than on Form S-8) or amendments filed pursuant to the Securities Act, which annual reports shall be accompanied by a report and opinion thereon of a firm of independent certified public accountants of recognized national standing acceptable to the Majority Lenders and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit; (ii) within ~~ninety~~ one (901) Business Day of the filing of any annual report and quarterly report referred to clause (i), a certificate of a Responsible Officer of the Company in form and substance satisfactory to the Lenders stating whether any Default exists on the date of such certificate, and if so, setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto; and (iii) as soon as available and in any event not later than 30 days ~~after~~ prior to the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ an operating budget for the ~~fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower~~ Company and its Subsidiaries ~~as at~~ approved by the ~~end~~ Board of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management Directors of the ~~Borrower, setting forth in each case in comparative form the figures~~ Company for the ~~previous~~ upcoming fiscal year, in ~~reasonable detail~~ form and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable substance satisfactory to the ~~Administrative Agent~~Majority Lenders, ~~which report and opinion (a) will~~ such budget to be prepared in accordance with ~~generally accepted auditing standards~~ GAAP and ~~(b) will not be subject to any qualification as to the scope of such audit (but may contain~~ on a ~~“going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ fair and reasonable basis and in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quartergood faith, and to be based on estimates and assumptions believed by the ~~related (a) consolidated statement of operations for such fiscal quarter~~ Company to be fair and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries reasonable as of the ~~end~~ time made and from the best information then available to the Company in the light of the ~~following fiscal year~~ current and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review reasonably foreseeable business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsconditions.

Appears in 1 contract

Sources: Loan Agreement (Aksys LTD)

Financial Statements and Other Reports. ~~Deliver~~ After the Closing Date, the Company agrees to send the following reports to the ~~Administrative Agent for prompt further distribution by~~ holder of Series A Preferred Stock: (a) so long as the ~~Administrative Agent to each Lender (~~Company is subject to the ~~limitations on distribution of any such information to Public Lenders as described in~~ requirements of, or otherwise making filings pursuant to, Section ~~6.02~~13 or 15(d) ~~each~~ of the ~~following:~~ Exchange Act, within three days after the filing with the Commission, a copy of its Annual Report on Form 10-KSB or Form 10-K, its Quarterly Reports on Form 10-QSB or Form 10-Q, any proxy statements or information statements and any Current Reports on Form 8-K, together in each case with amendments thereto; (1b) within ~~ninety~~ one day after release, copies of all press releases issued by the Company or any of its Subsidiaries; (90c) promptly upon receipt thereof, copies of reports, if any, submitted to the Company by independent accountants in connection with each annual or interim audit of the books of the Company made by such accountants; and (d) all other information sent to holders of the Common Stock or any other equity security holder. Without limiting the foregoing, the Company shall deliver to the Purchaser until the Purchaser transfers, assigns (except in the case of an assignment to an Affiliate) or sells all of its Series A Preferred Stock (a) as soon as practicable and in any event within 45 days after the end of each fiscal quarter, the following information: consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year to the end of such fiscal period and a comparison of each such item to the then current budget, and the balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal period, setting forth in each case in comparative form figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, certified as to fair presentation by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form; and (b) as soon as practicable and in any event within 90 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ the ~~fiscal year ending December 31~~following information: statements of income, ~~2024~~stockholders' equity and cash flows of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries as at the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form corresponding figures from the ~~figures for the previous~~ preceding fiscal year, ~~in reasonable detail and all~~ prepared in accordance with ~~GAAP~~generally accepted accounting principles consistently applied throughout the periods involved, ~~audited~~ and accompanied by ~~a report and~~ an opinion of ~~an independent registered public accounting~~ BDO ▇▇▇▇▇▇▇ ▇▇, or another firm of ~~nationally~~ independent public accountants of recognized national standing ~~or another accounting firm reasonably acceptable~~ selected by the Company, to the ~~Administrative Agent,~~ effect that the consolidated financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which ~~report~~ such accountants concur and ~~opinion (a~~as are noted therein) ~~will be prepared~~ and present fairly the financial condition of the Company and its consolidated Subsidiaries and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and ~~(b) will not be subject to any qualification as to the scope of~~ accordingly included such ~~audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ tests of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ accounting records and such other auditing procedures as were considered necessary in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, circumstances; and accompanied by a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement~~ written discussion of operations ~~for~~ by management in summary form with respect to such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, ~~accompanied~~ including a comparison to budget. The Purchaser is hereby authorized to deliver a copy of any financial statement delivered to it pursuant to this Section 4.2 to any regulatory body having jurisdiction over it that requests such information. Subject to compliance with reasonable confidentiality requirements imposed by ~~an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ the ~~financial condition~~Company, ~~results of operations and cash flows of~~ the ~~Borrower~~ Purchaser shall have reasonable access to the Company, including its management, and its ~~Subsidiaries in accordance with GAAP~~books and records during regular business hours and is further authorized to request information from and to have access to, ~~subject~~ at the Company's expense, the Company's independent public accountants. The Company shall request such accountants to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect make available to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent Purchaser such information ~~relates to a Parent Company of~~ as the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information Purchaser may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Securities Purchase Agreement (Leaf Mountain Co LLC)

Financial Statements and Other Reports. Deliver or cause to be delivered to the ~~Administrative~~ Agent for ~~prompt further distribution by~~ the ~~Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Borrower: (1a) ~~within ninety~~ As soon as practicable, but in any event not later than sixty (9060) days after the end of each fiscal quarter of the Borrower (including for the fourth fiscal quarter, which shall be subject to normal year end audit adjustments), the management prepared consolidating balance sheet of the Borrower and its Subsidiaries at the end of such quarter, and the related management prepared consolidating statements of earnings for such quarter, each setting forth in comparative form the figures for the same fiscal quarter of the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP. (b) As soon as practicable, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of the Borrower, ~~commencing with~~ the ~~fiscal year ending December 31, 2024, a~~ audited consolidated and unaudited consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such ~~fiscal~~ year, and the related ~~consolidated~~ statements of ~~operations~~ earnings and cash flows for such ~~fiscal~~ year, ~~together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower,~~ each setting forth ~~in each case~~ in comparative form the figures for the previous fiscal ~~year,~~ year and all such statements to be in reasonable ~~detail and all~~ detail, prepared in accordance with GAAP, ~~audited~~ and accompanied by a an auditor’s report ~~and opinion of~~ prepared without qualification by an independent ~~registered~~ certified public ~~accounting firm of nationally recognized standing or another accounting firm~~ accountant reasonably acceptable to the ~~Administrative~~ Agent~~, which report and opinion~~ . (ac) ~~will be prepared in accordance~~ Concurrently with ~~generally accepted auditing standards and (b) will not be subject to any qualification as to~~ the ~~scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ delivery of the ~~Facilities, (ii) any anticipated inability~~ financial statements referred to ~~satisfy the Financial Covenant or (iii) except~~ in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses Sections 6.2 (a) and (b)) above, a certificate (to be in ~~comparative~~ the form of Exhibit D or on such other form as the ~~figures for~~ Agent may from time to time prescribe) of an Authorized Representative stating that, to the ~~corresponding fiscal quarter~~ best of such Authorized Representative’s knowledge, the ~~previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that~~ Borrower during such ~~financial statements fairly present~~ period observed or performed in all material respects ~~the financial~~ all of their covenants and other agreements, and satisfied in all material respects every material condition, ~~results~~ contained in this Agreement or the other Loan Documents to be observed, performed or satisfied by them, and that such Authorized Representative has obtained no knowledge of ~~operations~~ any Default except as specified in such certificate and ~~cash flows of~~ such certificate shall include the ~~Borrower and its Subsidiaries~~ calculations in ~~accordance with GAAP, subject~~ reasonable detail required to ~~normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of~~ indicate the Borrower;’s compliance with financial covenants set forth in Article 7 hereof. (3d) As soon as available and in any event within ~~ninety~~ sixty (9060) days after the end of each fiscal ~~year of~~ quarter in the Borrower~~, commencing with respect to the~~ ’s fiscal ~~year ending December 31, 2024~~year, a consolidated ~~budget~~ loan production report as of the end of that fiscal quarter, presenting the total dollar volume and the number of Mortgage Loans originated and closed or purchased during that fiscal quarter and for the ~~following~~ fiscal ~~year on~~ year-to-date, specified by property type and loan type. (e) As soon as available and in any event within 60 days after the end of each calendar quarter, a ~~quarterly basis as customarily prepared by management of the Borrower for its internal use~~ consolidated report (~~including any projected consolidated balance sheet of the Borrower and its Subsidiaries~~ “Servicing Portfolio Report”) as of the end of the ~~following fiscal year~~ calendar quarter, as to all Mortgage Loans the servicing rights to which are owned by the Borrower (specified by investor type, recourse and non-recourse) regardless of whether the ~~related consolidated statements~~ Mortgage Loans are Pledged Loans. The Servicing Portfolio Report must indicate which Mortgage Loans (1) are current and in good standing, (2) are more than 30, 60 or 90 days past due, (3) are the subject of ~~projected income~~pending bankruptcy or foreclosure proceedings, or (4) have been converted (through foreclosure or other proceedings in ~~each case~~lieu of foreclosure) into real estate owned by, the Borrower. (f) At the Agent’s request, a commitment summary and pipeline report dated as of the end of such month and in form, substance and scope acceptable to the ~~extent prepared~~ Agent. (g) Promptly after the Borrower’s receipt thereof, copies of all accountants’ management letters delivered to the Borrower or its Subsidiaries. (h) Within ten (10) days after filing, copies of all regular or periodic financial and other reports, if any, which the Borrower shall file with the Securities and Exchange Commission or any governmental agency successor thereto and copies of any audits completed by ~~management~~ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇, FHA, or HUD. (i) From time to time, with reasonable promptness, such further information regarding the business, operations, properties or financial condition of the Borrower ~~and included in such consolidated budget), which projected financial statements shall be prepared in good faith on~~ as the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results Agent may ~~differ and that such differences may be material); and~~reasonably request. (4j) ~~[reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results~~ Within three (3) Business Day of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s receipt thereof, copies of any letters or communications from ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇ informing the Borrower of events resulting in a reduction or dilution of business arrangements with such ~~Parent Company~~entity. (k) By no later than the 15th day of each calendar month beginning October 1, 2009, a copy of ▇▇▇▇▇▇ Mae’s ~~Form 10-K~~ DUS watch list for mortgage loans serviced by CMC, including, without limitation, information on loans that have matured or ~~10-Q~~are in default, ~~as applicable, filed with the SEC (~~and ~~the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1)~~ special servicing action plans related to the ~~extent such~~ same. (l) By no later than the 15th day of each calendar month beginning October 1, 2009, a copy of ▇▇▇▇▇▇▇ Mac’s Risk Share watch list for mortgage loans serviced by CMP, including, without limitation, information ~~relates to a Parent Company of the Borrower, if and so long as such Parent Company will~~ on loans that have ~~Independent Assets~~ matured or ~~Operations, such information is accompanied by consolidating information (which need not be audited) that explains~~ are in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsdefault.

Appears in 1 contract

Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)

Financial Statements and Other Reports. ~~Deliver~~ The Guarantor will furnish to the ~~Administrative~~ Agent in sufficient copies for ~~prompt further~~ distribution ~~by the Administrative Agent to each Lender (subject~~ to the ~~limitations on distribution~~ Banks: (i) as soon as available and in any event within 55 days after the end of ~~any such information to Public Lenders as described in Section 6.02)~~ each of the ~~following:~~first three fiscal quarters of each fiscal year of the Guarantor, a consolidated balance sheet of the Guarantor and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income, shareholders' equity and cash flows of the Guarantor and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared 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; (1ii) as soon as available and in any event within ~~ninety (90)~~ 100 days after the end of each fiscal year of the ~~Borrower, commencing with the fiscal year ending December 31, 2024~~Guarantor, a consolidated balance sheet of the ~~Borrower~~ Guarantor and its Subsidiaries as at of the end of such fiscal year, and the related consolidated statements of ~~operations~~ income, shareholders' equity and cash flows of the Guarantor and its Subsidiaries for such fiscal year, ~~together~~ prepared in accordance with ~~related notes thereto~~ GAAP consistently applied, all in reasonable detail and ~~management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower,~~ setting forth ~~in each case~~ in comparative form the figures for the previous fiscal year, and in ~~reasonable detail and all prepared in accordance with GAAP~~the case of such consolidated financial statements, ~~audited and~~ accompanied by a report ~~and opinion~~ thereon of ~~an independent registered public accounting~~ Price Waterhouse LLP or another firm of ~~nationally~~ independent certified public accountants of recognized ~~standing or another accounting firm reasonably acceptable to the Administrative Agent~~national standing, which report ~~and opinion (a) will~~ shall be ~~prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification~~ unqualified as to ~~the~~ scope of ~~such~~ audit ~~(but may contain a “going concern”~~ or ~~like qualification that is due to (i)~~ the ~~impending maturity~~ status of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower Guarantor and its Subsidiaries as at a going concern; (iii) together with the financial statements required pursuant to clauses (i) and (ii), a Compliance Certificate of a Responsible Officer as of the end of ~~such fiscal quarter~~the applicable accounting period, ~~and the related (a) consolidated statement~~ which shall contain a certification of ~~operations for such fiscal quarter and for the portion~~ a Responsible Officer of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate Guarantor stating that such financial statements fairly present ~~in all material respects~~ the financial ~~condition, results of operations and cash flows~~ condition of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower Guarantor and its Subsidiaries as ~~of the end of the following fiscal year~~ at such date and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the ~~Borrower~~ Guarantor and its Subsidiaries for the ~~most recently~~ period ended ~~measurement period for~~ on such date and (iv) promptly after the giving, sending or filing thereof, copies of all reports, if any, which ~~financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with~~ the ~~Administrative Agent after delivery~~ Guarantor or any of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries sends to the holders of its respective capital stock or other securities and of all reports or filings, if any, by ~~furnishing (A)~~ the ~~applicable financial statements~~ Guarantor or any of ~~any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed~~ its Subsidiaries with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any ~~other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~national securities exchange.

Appears in 1 contract

Sources: Floating Rate Guaranteed Credit Facility (Lsi Logic Corp)

Financial Statements and Other Reports. Deliver to the Administrative Agent, the Operations Agent ~~for prompt further distribution~~ and each Bank: (a) As soon as available and in any event within sixty (60) days after each of its Fiscal Years, a copy of its annual audited statement of assets and liabilities, including a statement of investments, prepared in conformity with GAAP and certified by ~~the Administrative Agent to each Lender~~ a nationally recognized independent certified public accounting firm, together with a certificate from such firm (~~subject~~ i) acknowledging to the ~~limitations~~ Banks such firm's understanding that the Banks are relying on ~~distribution~~ such statement of assets and liabilities, (ii) containing a computation of, and showing compliance with, the relevant Fund's Asset Coverage Ratio and (iii) stating to the effect that, in making the examination necessary for the signing of such statement of assets and liabilities, such firm has not become aware of any Default that has occurred and is continuing, or if such firm has become aware of any such ~~information~~ event, describing it and the steps, if any, being taken to ~~Public Lenders as described in Section 6.02~~cure it; (b) ~~each~~ Within sixty (60) days after the end of the ~~following:~~first six months of its Fiscal Year, a copy of its published semi-annual asset statement, prepared in conformity with GAAP; (1c) ~~within ninety~~ Within fifteen (9015) days after the end of each ~~fiscal year of the Borrower~~calendar quarter, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations an executed certificate substantially in the form ~~customarily prepared by management~~ of ~~the Borrower,~~ Exhibit 6.1-1 ("Asset Coverage Ratio Certificate") setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) its asset coverage ratio (as calculated in the ~~impending maturity~~ manner contemplated by the form of ~~the Facilities,~~ Asset Coverage Ratio Certificate) ("Asset Coverage Ratio") and (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated~~ statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each caseeffect that, to the ~~extent prepared by management~~ best of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control knowledge of the ~~Loan Parties~~ Authorized Officer signing the Asset Coverage Ratio Certificate, no Default has occurred and ~~that no assurance can be given that any particular projections will be realized~~is continuing or, ~~that actual results may differ~~ if an Event of Default has occurred and ~~that such differences may be material); and (4) [reserved]. Further~~is continuing, the ~~Borrower shall conduct live quarterly conference calls that~~ steps being taken to remedy the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.same;

Appears in 1 contract

Sources: Credit Agreement (Liberty Funds Trust V)

Financial Statements and Other Reports. ~~Deliver to the Administrative Agent for prompt further distribution by the Administrative Agent~~ The Company covenants that it will deliver to each ~~Lender (subject to the limitations on distribution~~ holder of ~~any such information to Public Lenders as described~~ a Note in ~~Section 6.02) each of the following~~duplicate: (1i) as soon as is practicable and in any event within ~~ninety (90)~~ 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year ~~of the Borrower,~~ commencing with the ~~fiscal year~~ first such quarter ending ~~December 31~~after the date of the Closing, ~~2024~~a consolidated statement of income of the Company and its Subsidiaries for such quarterly period, and a consolidated balance sheet of the ~~Borrower~~ Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrowerquarterly period, setting forth in each case in comparative ~~form the~~ form, figures for the ~~previous~~ corresponding period in the preceding fiscal year, all in reasonable detail and ~~all prepared in accordance with GAAP, audited~~ certified as complete and ~~accompanied by a report~~ correct and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted ~~auditing standards and (b) will not be~~ accounting principles by an authorized financial officer of the Company, subject to ~~any qualification as to~~ changes resulting from year-end adjustments; provided, however, that delivery of substantially the ~~scope of such audit (but may contain a “going concern” or like qualification~~ same financial statement information that is ~~due to (i) the impending maturity~~ required by a Quarterly Report on Form 10-Q or any successor form of the ~~Facilities, (ii) any anticipated inability~~ Company for such quarterly period as such form is in effect on the date hereof under the Exchange Act shall be deemed to satisfy the ~~Financial Covenant or~~ requirements of this clause (~~iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant~~i); (2ii) as soon as practicable and in any event within ~~forty-five (45)~~ 90 days after the end of each fiscal year, a consolidated statement of income and of cash flow of the ~~first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30~~Company and its Subsidiaries for such year, ~~2024,~~ and a consolidated balance sheet of the ~~Borrower~~ Company and its Subsidiaries as at the end of such ~~fiscal quarter~~year, setting forth in each case in comparative form, corresponding consolidated figures from the preceding annual audit, all in reasonable detail and reasonably satisfactory in scope to the Required Holder(s), and accompanied by an opinion directed to the ~~related~~ Company of independent public accountants of recognized national standing selected by the Company to the Required Holder(s); provided, however, that delivery of substantially the same financial statement information that is required by an Annual Report on Form 10-K of any successor form (aincluding all incorporated documents) ~~consolidated statement~~ of ~~operations~~ the Company for such fiscal ~~quarter and for~~ year as such form is in effect on the ~~portion~~ date hereof under the Exchange Act shall be deemed to satisfy the requirements of ~~the fiscal year then ended and~~ this clause (~~b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b~~ii), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3iii) ~~within ninety~~ promptly upon transmission thereof, copies of all such financial statements, proxy statements, notices and reports as it shall send to its public stockholders and copies of all registration statements (~~90) days after the end of each fiscal year of the Borrower~~without exhibits), ~~commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year~~ other than on ~~a quarterly basis as customarily prepared by management of the Borrower for its internal use~~ Form S-8 or any similar successor form (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, except to the extent ~~prepared by management~~ such registration statement on Form S-8 relates to the Plan), and all public reports which it files with the Commission; (iv) in the event the Company Notes are not outstanding, promptly upon its becoming available and in any event within 30 days after such time as such reports are required to be filed with the IRS, a copy of the ~~Borrower and included~~ annual report of the Plan on Form 5500; (v) in ~~such consolidated budget), which projected financial statements shall be prepared in good faith on~~ the ~~basis of assumptions believed to be reasonable at~~ event the ~~time of preparation of such projected financial statements (it being understood that any such projections~~ Company Notes are not ~~to be viewed as facts~~outstanding, ~~are subject to significant uncertainties and contingencies~~promptly upon their becoming available, ~~many of which are beyond the control~~ copies of the ~~Loan Parties and~~ Annual Report on Form 11-K of the Plan as filed with the Commission; (vi) in the event the Company Notes are not outstanding, promptly following the Company's obtaining knowledge thereof, a notice of the occurrence of any event that ~~no assurance can~~ could, in the reasonable judgment of the Company, be ~~given that~~ expected to give rise to a change in the interest rate applicable to the Notes or the payment of any ~~particular projections will be realized~~amount by the ESOT pursuant to paragraph 7; provided, however, that ~~actual results may differ and that such differences may~~ the Company shall not be ~~material)~~required pursuant to this clause (vi) to give notice of the introduction or enactment of any amendments to ERISA or the Code or of the proposal or adoption of any regulations under either ERISA or the Code or any other matter of public knowledge; and (4vii) ~~[reserved]~~with reasonable promptness, such other financial data as any holder(s) may reasonably request. ~~Further~~Together with each delivery of financial statements required by clauses (i) and (ii) above, the ~~Borrower shall conduct live quarterly conference calls that~~ Company will deliver to each holder of Notes an Officer's Certificate demonstrating (with computations in reasonable detail) compliance by the ~~Lenders may attend to discuss the financial condition and results of operations of the Borrower~~ Company and its Subsidiaries ~~for~~ with the ~~most recently ended measurement~~ provisions of paragraphs 6A, 6B and 6C and stating that there exists no Event of Default, Default or event referred to in paragraph 4A(b), or, if any such Default or event exist, specifying the nature and period ~~for which~~ of existence thereof and what action the Company proposes to take with respect thereto. Together with each delivery of financial statements ~~have been delivered pursuant~~ required by clause (ii) above, the Company will deliver to ~~Section 6.01(1) and Section 6.01(2)~~each holder of Notes a certificate of such accountants stating that, ~~at a date and time~~ in making the audit necessary to ~~be determined by Borrower in consultation with~~ the ~~Administrative Agent after delivery~~ certification of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, ~~the obligations~~ they have obtained no knowledge of any Event of Default, Default or event referred to in ~~Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements~~ paragraph 4A(b), or, if they have obtained knowledge of any ~~Parent Company~~ such Default or ~~(B)~~ event, specifying the ~~Borrower’s~~ nature and period of existence thereof. Such accountants, however, shall not be liable to anyone by reason of their failure to obtain knowledge of any Event of Default, Default or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect event referred to ~~each of the preceding clauses (A) and (B~~in paragraph 4A(b), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which ~~need~~ would not be ~~audited) that explains~~ disclosed in ~~reasonable detail~~ the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion course of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared audit conducted in accordance with generally accepted auditing ~~standards and (b) will not be subject to any qualification as to~~ standards. The Company also covenants that forthwith upon the ~~scope of such audit (but may contain a “going concern”~~ chief executive officer, chief operating officer, principal financial officer, principal accounting officer or ~~like qualification that is due to (i) the impending maturity~~ treasurer of the ~~Facilities~~Company obtaining actual knowledge of an Event of Default, ~~(ii) any anticipated inability~~ Default or event referred to ~~satisfy~~ in paragraph 4A(b), it will deliver to each holder of Notes an Officer's Certificate specifying the ~~Financial Covenant or (iii) except in~~ nature and period of existence thereof and what action the ~~case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required~~ Company proposes to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementstake with respect thereto.

Appears in 1 contract

Sources: Note Purchase Agreement (Athens Holdings Inc)

Financial Statements and Other Reports. ~~Deliver~~ Company will deliver to ~~the Administrative~~ Global Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingand Lenders: (1) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) ~~will be prepared~~ as soon as available and in ~~accordance with generally accepted auditing standards and (b) will not be subject to~~ any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) event within forty-five (45) days after the end of each of the first three ~~(3) fiscal quarters~~ Fiscal Quarters of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower commencing with September 30, 2024, a~~ consolidated balance sheet of ~~the Borrower~~ Company and its Subsidiaries as at the end of such ~~fiscal quarter,~~ Fiscal Quarter and the related ~~(a)~~ consolidated ~~statement~~ statements of ~~operations~~ income, stockholders' equity and cash flows of Company and its Subsidiaries for such ~~fiscal quarter~~ Fiscal Quarter and for the ~~portion~~ period from the beginning of the ~~fiscal year~~ then ~~ended and (b) consolidated statement~~ current Fiscal Year to the end of ~~cash flows for the portion of the fiscal year then ended~~such Fiscal Quarter, setting ~~forth,~~ forth in each case ~~of the preceding clauses (a) and (b),~~ in comparative form the corresponding figures for the corresponding ~~fiscal quarter~~ periods of the previous ~~fiscal year and the corresponding portion of the previous fiscal year~~Fiscal Year, ~~accompanied by an Officer’s Certificate stating that such financial statements fairly present~~ all in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotesreasonable detail, together with ~~management’s discussion~~ a Financial Officer Certification and ~~analysis describing results of operations in the form customarily prepared by management of the Borrower~~a Narrative Report with respect thereto; (3b) as soon as available and in any event within ninety (90) days after the end of each ~~fiscal year of~~ Fiscal Year, (i) the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of ~~the Borrower~~ Company and its Subsidiaries as of at the end of ~~the following fiscal year~~ such Fiscal Year and the related consolidated statements of ~~projected~~ income, ~~in each case, to the extent prepared by management~~ stockholders' equity and cash flows of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower Company and its Subsidiaries for such Fiscal Year in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Company, together with a written statement by such independent certified public accountants stating (1) that their audit examination has included a review of the ~~most recently ended measurement~~ terms of the Credit Documents, (2) whether, in connection therewith, any condition or event that constitutes a Default or an Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period ~~for which~~ of existence thereof, and (3) that nothing has come to their attention that causes them to believe either or both that the information contained in any Compliance Certificate is not correct or that the matters set forth in such Compliance Certificate are not stated in accordance with the terms hereof; (c) together with each delivery of financial statements of Company and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate; 92 100 (d) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Company and its Subsidiaries delivered pursuant to Section 5.1(a), 5.1(b) or 5.1 (i) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to ~~Section 6.01(1)~~ such subdivisions had no such change in accounting principles and ~~Section 6.01(2)~~policies been made, ~~at a date and time to be determined by Borrower in consultation~~ then together with the ~~Administrative Agent after~~ first delivery of such financial statements after such change a statement of reconciliation for all such prior financial statements in form and substance satisfactory to Requisite Lenders; (e) promptly upon their becoming available, copies of (i) all financial statements~~. Such live quarterly conference calls will review business performance~~ , reports, notices and ~~key performance indicators~~ proxy statements sent or made available generally by Company to its Security holders acting in such capacity or by any Subsidiary of Company to its Security holders other than Company or another Subsidiary of Company, (ii) all regular and ~~will include question-and-answer sessions for public-side~~ periodic reports and ~~private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1~~all registration statements (other than on Form S-8 or a similar form) and ~~6.01(2~~prospectuses, if any, filed by Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority, and (iii) ~~may be satisfied~~ all press releases and other statements made available generally by Company or any of its Subsidiaries to the public concerning material developments in the business of Company or any of its Subsidiaries; (f) promptly upon any officer of Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Company by any Lender or Agent with respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other action with respect to ~~financial information~~ any event or condition set forth in Section 8.1(b); (iii) of any condition or event of a type required to be disclosed in a current report on Form 8-K of the ~~Borrower~~ Securities and Exchange Commission (excluding Item 3 as in effect on the date hereof); or (iv) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Company has taken, is taking and proposes to take with respect thereto; (g) promptly upon any officer of Company obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Company to enable Lenders and their counsel to evaluate such matters; (i) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by ~~furnishing~~ the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (Aii) upon request of Global Agent and with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the ~~applicable financial statements~~ annual report (Form 5500 Series) filed by Company, any of its Subsidiaries or any ~~Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed~~ of their respective ERISA Affiliates with the ~~SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that~~ Internal Revenue Service with respect to each Pension Plan; (2) all notices received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Global Agent shall reasonably request; (i) at any time either (i) Mood▇'▇ ▇▇▇ assigned to Company's long term Indebtedness for borrowed money a rating of lower than Baa3, or (ii) S&P has assigned to Company's long term Indebtedness for borrowed money a rating of lower than BBB-, as soon as practicable and in any event no later than forty five (45) days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year (a "Financial Plan"), including a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for such Fiscal Year, together with pro forma Compliance Certificates for such Fiscal Year and an explanation of the ~~preceding clauses~~ assumptions on which such forecasts are based; (Aj) as soon as practicable and in any event by the last day of each Fiscal Year, a report in form and substance satisfactory to Global Agent outlining all material insurance coverage maintained as of the date of such report by Company and its Subsidiaries and all material insurance coverage planned to be maintained by Company and its Subsidiaries in the immediately succeeding Fiscal Year; (B)k) with reasonable promptness, written notice of any change in the Board of Directors of Company; (1l) promptly, and in any event within ten (10) Business Days after any Material Contract of Company or any of its Subsidiaries is terminated or amended in a manner that is materially adverse to Company or such Subsidiary, as the case may be, or any new Material Contract is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Global Agent (to the extent such ~~information relates to a Parent~~ delivery is permitted by the terms of any such Material Contract, provided, no such prohibition on delivery shall be effective if it were bargained for by Company or its applicable Subsidiary with the intent of ~~the Borrower~~avoiding compliance with this Section 5.1(l)), if and so an explanation of any actions being taken with respect thereto; (m) promptly, written notice of any change in either Mood▇'▇ ▇▇ S&P's rating for Company's long ~~as such Parent Company will have Independent Assets or Operations~~term Indebtedness; and (n) with reasonable promptness, such other information ~~is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating~~ and data with respect to ~~such Parent~~ Company ~~and~~ or any of its ~~Independent Assets or Operations, on the one hand, and the information relating~~ Subsidiaries as from time to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information time may be ~~audited at the option of the Borrower), such materials are accompanied~~ reasonably requested by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsLender.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Stryker Corp)

Financial Statements and Other Reports. ~~Deliver~~ DreamWorks Animation shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingHBO: (1a) as soon as available, but in any event within ~~ninety (90)~~ 90 days after the end of each fiscal year of ~~the Borrower, commencing with the fiscal year ending December 31, 2024~~DreamWorks Animation, a ~~consolidated~~ copy of the Consolidated balance sheet of ~~the Borrower~~ DreamWorks Animation and its Consolidated Subsidiaries as at the end of such ~~fiscal year,~~ year and the related ~~consolidated~~ Consolidated statements of ~~operations~~ income and retained earnings and of cash flows for such ~~fiscal~~ year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the figures for the previous ~~fiscal~~ year, ~~in reasonable detail and all prepared in accordance with GAAP~~reported on without qualification, ~~audited and accompanied~~ by ~~a report and opinion of an~~ independent ~~registered~~ certified public ~~accounting firm~~ accountants of nationally recognized ~~standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and~~ standing; (b) ~~will~~ as soon as available, but in any event not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) later than 45 days after the end of each of the first three ~~(3) fiscal quarters~~ quarterly periods of each fiscal year of ~~the Borrower~~ DreamWorks Animation (commencing with the fiscal quarter ending on September 30, ~~2024~~2004), a ~~consolidated~~ copy of the unaudited Consolidated balance sheet of ~~the Borrower~~ DreamWorks Animation and its Consolidated Subsidiaries as at the end of such ~~fiscal quarter,~~ quarter and the related ~~(a) consolidated statement~~ unaudited Consolidated statements of ~~operations~~ income and retained earnings and of cash flows of DreamWorks Animation and its Consolidated Subsidiaries for such ~~fiscal~~ quarter and ~~for~~ the portion of the fiscal year ~~then ended and (b) consolidated statement~~ through the end of ~~cash flows for the portion of the fiscal year then ended~~such quarter, setting ~~forth,~~ forth in each case ~~of the preceding clauses (a) and (b),~~ in comparative form the figures for the ~~corresponding fiscal quarter~~ previous year; (c) within 15 days after the delivery of the ~~previous fiscal year and the corresponding portion~~ financial statements referred to in Section 5.01(a), a certificate of the ~~previous fiscal year~~independent certified public accountants reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, ~~accompanied by~~ except as specified in such certificate; (d) concurrently with the delivery of the financial statements referred to in Section 5.01(a) and within 15 days after the delivery of the financial statements referred to in Section 5.01(b), a certificate of an ~~Officer’s Certificate~~ Authorized Officer (1) stating that such Authorized Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate; (2) including calculations in reasonable detail with respect to compliance with Section 5.05 and Section 5.07; and (3) certifying that the financial statements delivered for such period are fairly ~~present~~ stated in all material respects (subject to normal year end adjustments); (e) concurrently with the delivery of the financial ~~condition~~statements referred to in Section 5.01(a) and within 15 days after the delivery of the financial statements referred to in Section 5.01(b), ~~results of operations~~ projections in form and scope reasonably acceptable to HBO for the Test Period commencing immediately after the fiscal period covered by such financial statements, including an operating budget and cash ~~flows~~ flow budget of ~~the Borrower~~ DreamWorks Animation and its Subsidiaries for such period and sufficient information in ~~accordance with GAAP~~reasonable detail to support the calculation of Projected Sources and Projected Uses for such Test Period, ~~subject~~ such projections to ~~normal year-end adjustments~~ be accompanied by a certificate of an Authorized Officer to the effect that such projections have been prepared on the basis of sound financial planning practice and ~~the absence of footnotes, together with management’s discussion and analysis describing results of operations~~ that such Authorized Officer has no reason to believe they are incorrect or misleading in ~~the form customarily prepared by management of the Borrower~~any material respect; (3f) ~~within ninety (90) days~~ promptly after the ~~end~~ same become publicly available, copies of ~~each fiscal year~~ all periodic reports, proxy statements and other materials filed by DreamWorks Animation or any of its Subsidiaries with the ~~Borrower~~Securities and Exchange Commission (or any successor thereto) or any national securities exchange, ~~commencing~~ or distributed by DreamWorks Animation or any of its Subsidiaries to its security holders generally, as the case may be; and (g) with reasonable promptness, such other information and data with respect to ~~the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ DreamWorks Animation or any of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and~~ its Subsidiaries as ~~of the end of the following fiscal year~~ from time to time may be reasonably requested by HBO. All such financial and ~~the related consolidated~~ other statements ~~of projected income,~~ shall be complete and correct in ~~each case, to the extent~~ all material respects and shall be prepared ~~by management of the Borrower and included~~ in reasonable detail. All such ~~consolidated budget), which projected~~ financial statements shall be prepared in ~~good faith on~~ accordance with GAAP applied consistently throughout the ~~basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements~~ periods reflected therein (~~it being understood that any such projections are not to be viewed~~ except as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined approved by ~~Borrower in consultation with the Administrative Agent after delivery of~~ such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company Authorized Officer or ~~(B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q~~accountants, as ~~applicable, filed with~~ the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one handcase may be, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrowerdisclosed therein), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.

Appears in 1 contract

Sources: Subordinated Loan Agreement (DreamWorks Animation SKG, Inc.)

Appears in 1 contract

Sources: Term Loan Credit Agreement (Container Store Group, Inc.)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower shall furnish to the ~~Administrative~~ Agent in sufficient copies for ~~prompt further~~ distribution ~~by the Administrative Agent to each Lender (subject~~ to the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Lenders: (1i) as soon as available and in any event within ~~ninety (90)~~ 45 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three ~~(3)~~ fiscal quarters of each fiscal ~~year of the Borrower commencing with September 30, 2024~~year, a consolidated ~~balance sheet of the Borrower~~ and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated consolidating balance sheet of the Borrower and its Subsidiaries as of the end of ~~the following fiscal year~~ such quarter, and the related consolidated and, as to statements of ~~projected~~ income only, consolidating statements of income, ~~in each case, to the extent prepared by management~~ shareholders' equity and cash flows of the Borrower and ~~included~~ its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such ~~consolidated budget), which projected~~ financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss fairly present the financial condition of the Borrower and its Subsidiaries as at such date and the results of operations of the Borrower and its Subsidiaries for the ~~most recently~~ period ended ~~measurement period for which financial statements~~ on such date and have been ~~delivered pursuant~~ prepared in accordance with GAAP consistently applied, subject to ~~Section 6.01(1~~changes resulting from normal, year-end audit adjustments and except for the absence of notes; (ii) as soon as available and ~~Section 6.01(2)~~in any event within 90 days after the end of each fiscal year, at a ~~date~~ consolidated and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information consolidating balance sheet of the Borrower and its Subsidiaries ~~by furnishing (A)~~ as of the ~~applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing~~ end of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one handfiscal year, and the ~~information relating~~ related consolidated and, as to statements of income only, consolidating statements of income, shareholders' equity and cash flows of the Borrower and ~~the consolidated~~ its Subsidiaries ~~on a stand-alone basis~~for such fiscal year, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with ~~generally accepted auditing standards~~ GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, and (bA) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of such consolidated financial statements, accompanied by an audit report thereon of M▇▇▇ A▇▇▇▇ LLP or another firm of independent certified public accountants of recognized national standing acceptable to the ~~Revolving Facility~~Majority Lenders, ~~an actual Default~~ which report shall not be qualified as to (1) going concern, or (2) any limitation in the scope of the ~~Financial Covenant). Any~~ audit, and (B) in the case of such consolidating financial statements, certified by a Responsible Officer of the Borrower; (iii) together with the financial statements required ~~to be delivered~~ pursuant to ~~Sections 6.01(1~~clauses (i) ~~or 6.01(2~~and (ii), (A) ~~shall not be required to contain~~ a Compliance Certificate of a Responsible Officer as of the end of the applicable accounting period and (B) an Update Certificate of a Responsible Officer as of the end of the applicable accounting period; (iv) promptly upon receipt thereof, copies of all ~~purchase accounting adjustments relating~~ reports submitted to the ~~Transactions~~ Borrower by its independent certified public accountants in connection with each annual, interim or ~~any other transaction(s) permitted hereunder~~ special audit examination of the Borrower and its Subsidiaries made by such accountants, including the "management letter" submitted by such accountants to the ~~extent it is~~ Borrower in connection with their annual audit; (v) as soon as available and in any event not ~~practicable~~ less than 30 days prior to ~~include any such adjustments in such~~ the start of each fiscal year, a consolidated financial ~~statements.~~forecast for the Borrower and its Subsidiaries for the following fiscal year and each fiscal year thereafter through the Final Maturity Date, including forecasted consolidated balance sheets, consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries which forecast shall (A) state the

Appears in 1 contract

Sources: Credit Agreement (Chalone Wine Group LTD)

Financial Statements and Other Reports. Deliver or cause to be delivered to the ~~Administrative~~ Agent for ~~prompt further distribution by~~ the ~~Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Borrower: (1a) ~~within ninety~~ As soon as practicable, but in any event not later than sixty (9060) days after the end of each fiscal quarter of the Borrower (including for the fourth fiscal quarter, which shall be subject to normal year end audit adjustments), the management prepared consolidating balance sheet of the Borrower and its Subsidiaries at the end of such quarter, and the related management prepared consolidating statements of earnings for such quarter, each setting forth in comparative form the figures for the same fiscal quarter of the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP. (b) As soon as practicable, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of the Borrower, ~~commencing with~~ the ~~fiscal year ending December 31, 2024, a~~ audited consolidated and unaudited consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such ~~fiscal~~ year, and the related ~~consolidated~~ statements of ~~operations~~ earnings and cash flows for such ~~fiscal~~ year, ~~together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower,~~ each setting forth ~~in each case~~ in comparative form the figures for the previous fiscal ~~year,~~ year and all such statements to be in reasonable ~~detail and all~~ detail, prepared in accordance with GAAP, ~~audited~~ and accompanied by a an auditor’s report ~~and opinion of~~ prepared without qualification by an independent ~~registered~~ certified public ~~accounting firm of nationally recognized standing or another accounting firm~~ accountant reasonably acceptable to the ~~Administrative~~ Agent~~, which report and opinion~~ . (ac) ~~will be prepared in accordance~~ Concurrently with ~~generally accepted auditing standards and (b) will not be subject to any qualification as to~~ the ~~scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ delivery of the ~~Facilities, (ii) any anticipated inability~~ financial statements referred to ~~satisfy the Financial Covenant or (iii) except~~ in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses Sections 6.2 (a) and (b)) above, a certificate (to be in ~~comparative~~ the form of Exhibit D or on such other form as the ~~figures for~~ Agent may from time to time prescribe) of an Authorized Representative stating that, to the ~~corresponding fiscal quarter~~ best of such Authorized Representative’s knowledge, the ~~previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that~~ Borrower during such ~~financial statements fairly present~~ period observed or performed in all material respects ~~the financial~~ all of their covenants and other agreements, and satisfied in all material respects every material condition, ~~results~~ contained in this Agreement or the other Loan Documents to be observed, performed or satisfied by them, and that such Authorized Representative has obtained no knowledge of ~~operations~~ any Default except as specified in such certificate and ~~cash flows of~~ such certificate shall include the ~~Borrower and its Subsidiaries~~ calculations in ~~accordance with GAAP, subject~~ reasonable detail required to ~~normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of~~ indicate the Borrower;’s compliance with financial covenants set forth in Article 7 hereof. (3d) As soon as available and in any event within ~~ninety~~ sixty (9060) days after the end of each fiscal ~~year of~~ quarter in the Borrower~~, commencing with respect to the~~ ’s fiscal ~~year ending December 31, 2024~~year, a consolidated ~~budget~~ loan production report as of the end of that fiscal quarter, presenting the total dollar volume and the number of Mortgage Loans originated and closed or purchased during that fiscal quarter and for the ~~following~~ fiscal ~~year on~~ year-to-date, specified by property type and loan type. (e) As soon as available and in any event within 60 days after the end of each calendar quarter, a ~~quarterly basis as customarily prepared by management of the Borrower for its internal use~~ consolidated report (~~including any projected consolidated balance sheet of the Borrower and its Subsidiaries~~ “Servicing Portfolio Report”) as of the end of the ~~following fiscal year~~ calendar quarter, as to all Mortgage Loans the servicing rights to which are owned by the Borrower (specified by investor type, recourse and non-recourse) regardless of whether the ~~related consolidated statements~~ Mortgage Loans are Pledged Loans. The Servicing Portfolio Report must indicate which Mortgage Loans (1) are current and in good standing, (2) are more than 30, 60 or 90 days past due, (3) are the subject of ~~projected income~~pending bankruptcy or foreclosure proceedings, or (4) have been converted (through foreclosure or other proceedings in ~~each case~~lieu of foreclosure) into real estate owned by, the Borrower. (f) At the Agent’s request, a commitment summary and pipeline report dated as of the end of such month and in form, substance and scope acceptable to the ~~extent prepared~~ Agent. (g) Promptly after the Borrower’s receipt thereof, copies of all accountants’ management letters delivered to the Borrower or its Subsidiaries. (h) Within ten (10) days after filing, copies of all regular or periodic financial and other reports, if any, which the Borrower shall file with the Securities and Exchange Commission or any governmental agency successor thereto and copies of any audits completed by ~~management~~ G▇▇▇▇▇ M▇▇, F▇▇▇▇▇▇ Mac, F▇▇▇▇▇ M▇▇, FHA, or HUD. (i) From time to time, with reasonable promptness, such further information regarding the business, operations, properties or financial condition of the Borrower ~~and included in such consolidated budget), which projected financial statements shall be prepared in good faith on~~ as the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results Agent may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower will deliver, or willSection 7.1 cause to be delivered, to the Administrative ~~Agent~~ Agent: Quarterly Financial Statements for ~~prompt further distribution by~~ the ~~Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following: (1) within ninety (90~~Borrower and its Subsidiaries. Within forty-five(a) days after the end of each ~~fiscal year~~ Fiscal Quarter of each Fiscal Year (excluding the ~~Borrower~~fourth Fiscal Quarter), ~~commencing with~~ the ~~fiscal year ending December 31, 2024, a~~ consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such ~~fiscal year,~~ Fiscal Quarter and the related consolidated ~~statements~~ statement of ~~operations~~ income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such ~~fiscal year, together with related notes thereto~~ Fiscal Quarter and ~~management’s discussion and analysis describing results of operations in~~ for the ~~form customarily prepared by management~~ period from the beginning of the ~~Borrower~~then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous ~~fiscal year~~Fiscal Year, all in reasonable detail and consistent in all ~~prepared in accordance~~ material respects with ~~GAAP~~the manner of presentation as of the Closing Date, ~~audited~~ together with a Financial Officer Certification with respect thereto; Audited Annual Financial Statements for the Borrower and ~~accompanied by a report and opinion~~ its Subsidiaries. Upon the(b) earlier of ~~an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to~~ (x) the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification date that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) ninety days after the end of each Fiscal Year ▇▇▇▇▇ (y) the date such information is required to be filed with the SEC (in the case of this clause (y), giving effect to any applicable extension period (that does not require special application to, and approval by, the ~~first three~~ SEC) for such filing in accordance with applicable SEC rules), (3i) ~~fiscal quarters of each fiscal year of~~ the ~~Borrower commencing with September 30, 2024, a~~ consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such ~~fiscal quarter,~~ Fiscal Year and the related ~~(a)~~ consolidated statement of ~~operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended~~income, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in ~~accordance~~ each case in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail and consistent in all material respects with ~~GAAP, subject to normal year-end adjustments and~~ the ~~absence~~ manner of ~~footnotes~~presentation as of the Closing Date, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing a Financial Officer Certification with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower thereto; and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) ~~any anticipated inability to satisfy the Financial Covenant~~ with a report thereon of Cherry Bekaert LLP or ~~(iii) except in the case~~ other independent certified public accountants of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.recognized national standing 91 130164155_5

Appears in 1 contract

Sources: Credit Agreement (Ebix Inc)

Financial Statements and Other Reports. ~~Deliver~~ After the Closing Date, the Company agrees to send the ~~Administrative Agent for prompt further distribution by the Administrative Agent~~ following reports to each ~~Lender~~ holder of Series D Preferred Stock: (a) so long as the Company is subject to the ~~limitations on distribution of any such information to Public Lenders as described in~~ requirements of, or otherwise making filings pursuant to, Section ~~6.02~~13 or 15(d) ~~each~~ of the ~~following:~~Exchange Act, within three (3) days after the filing with the Commission, a copy of its Annual Report on Form 10-KSB or Form 10-K, its Quarterly Reports on Form 10-QSB or Form 10-Q, any proxy statements or information statements and any Current Reports on Form 8-K, together in each case with amendments thereto; (b) within one (1) day after release, copies of all press releases issued by the Company or any of its Subsidiaries; (c) promptly upon receipt thereof, copies of reports, if any, submitted to the Company by independent accountants in connection with each annual or interim audit of the books of the Company made by such accountants; and (d) all other information sent to holders of the Common Stock or any other equity security holder. Without limiting the foregoing, the Company shall deliver to each Purchaser until such Purchaser transfers, assigns (except in the case of an assignment to an Affiliate) or sells all of its Series D Preferred Stock (i) as soon as practicable and in any event within ~~ninety~~ 45 days after the end of each fiscal quarter, the following information: consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year to the end of such fiscal period and a comparison of each such item to the then current budget, and the balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal period, setting forth in each case in comparative form figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, certified as to fair presentation by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form; and (90ii) as soon as practicable and in any event within 90 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ the ~~fiscal year ending December 31~~following information: statements of income, ~~2024~~stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries as at the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form corresponding figures from the ~~figures for the previous~~ preceding fiscal year, ~~in reasonable detail and all~~ prepared in accordance with ~~GAAP~~generally accepted accounting principles consistently applied throughout the periods involved, ~~audited~~ and accompanied by ~~a report and~~ an opinion of ~~an independent registered public accounting~~ BDO ▇▇▇▇▇▇▇ ▇▇, or another firm of ~~nationally~~ independent public accountants of recognized national standing ~~or another accounting firm reasonably acceptable~~ selected by the Company, to the ~~Administrative Agent,~~ effect that the consolidated financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which ~~report~~ such accountants concur and ~~opinion (a~~as are noted therein) ~~will be prepared~~ and present fairly the financial condition of the Company and its consolidated Subsidiaries and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and ~~(b) will not be subject to any qualification as to the scope of~~ accordingly included such ~~audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ tests of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ accounting records and such other auditing procedures as were considered necessary in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, circumstances; and accompanied by a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement~~ written discussion of operations ~~for~~ by management in summary form with respect to such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, ~~accompanied~~ including a comparison to budget. Each Purchaser is hereby authorized to deliver a copy of any financial statement delivered to it pursuant to this Section 4.1 to any regulatory body having jurisdiction over it that requests such information. Subject to compliance with reasonable confidentiality requirements imposed by ~~an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ the ~~financial condition~~Company, ~~results of operations and cash flows of~~ each Purchaser shall have reasonable access to the ~~Borrower~~ Company, including its management, and its ~~Subsidiaries in accordance with GAAP~~books and records during regular business hours and is further authorized to request information from and to have access to, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. FurtherCompany’s expense, the ~~Borrower~~ Company’s independent public accountants. The Company shall ~~conduct live quarterly conference calls that the Lenders~~ request such accountants to make available to any Purchaser such information as such Purchaser may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lendersreasonably request. Notwithstanding the foregoing, the ~~obligations referred~~ Company need not provide any Purchaser with any information pursuant to ~~in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of~~ this Section 4.1 which the ~~Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent~~ Company ~~or (B) the Borrower’s or~~ reasonably believes constitutes material, non-public information, unless such ~~Parent Company’s Form 10-K or 10-Q, as applicable, filed~~ Purchaser has entered into an acceptable written confidentiality agreement with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsCompany.

Appears in 1 contract

Sources: Securities Purchase Agreement (Electric City Corp)

Financial Statements and Other Reports. ~~Deliver~~ (a) Holdings will deliver to the Administrative Agent for ~~prompt further~~ distribution ~~by the Administrative Agent to each Lender (subject~~ to the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Lenders: (1i) within ~~ninety (90)~~ 90 days after the end of each ~~fiscal year~~ Fiscal Year, annual reports of Holdings containing the ~~Borrower~~financial information that would have been required to be contained in an Annual Report on Form 10-K under the Exchange Act if Holdings had been a reporting company under the Exchange Act, ~~commencing with the fiscal year ending December 31~~including (A) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section, ~~2024,~~ (B) a ~~consolidated balance sheet~~ presentation of ~~the Borrower~~ Adjusted EBITDA of Holdings and its Subsidiaries ~~as at~~ consistent with the ~~end of such fiscal year~~presentation thereof in the Offering Circular, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by (C) a report ~~and opinion of an~~ on the annual financial statements by Holdings’ independent registered public accounting ~~firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which~~ firm; provided that such annual report ~~and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b)~~ will not be ~~subject~~ required to ~~any qualification as to the scope~~ contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of ~~such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities,~~ Form-10-K; (ii) ~~any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2)~~ within ~~forty-five (45)~~ 45 days after the end of each of the first three ~~(3) fiscal quarters~~ Fiscal Quarters of each ~~fiscal year~~ Fiscal Year, quarterly reports of Holdings containing all of the ~~Borrower commencing with September 30~~financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if Holdings had been a reporting company under the Exchange Act, ~~2024~~including (A) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section, (B) a ~~consolidated balance sheet~~ presentation of ~~the Borrower~~ Adjusted EBITDA of Holdings and its Subsidiaries consistent with the presentation thereof in the Offering Circular, and (C) unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); (iii) within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if Holdings had been a reporting company under the Exchange Act, current reports containing substantially all of the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01 and 5.02 (other than any compensation-related information) of Form 8-K if Holdings had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if Holdings determines in its good faith judgment that such event is not material to Lenders or to the business, assets, operations, financial positions or prospects of Holdings and its Subsidiaries, taken as at a whole or (ii) contain financial statements of any acquired business or any related pro forma financial statements; and (iv) no later than 75 days after consummating any investment, acquisition or disposition in which (x) the pre-acquisition Adjusted EBITDA amount of such investment, acquisition or disposition constitutes 20% or more of Holdings and its Subsidiaries’ Adjusted EBITDA for the most recently ended four Fiscal Quarters for which financial statements are available immediately preceding the date on which such investment, acquisition or disposition is consummated or (y) the purchase price or total assets for the investment, acquisition or disposition being acquired or disposed of constitute 20% or more of Holdings and its Subsidiaries’ Total Assets as of the end of the most recent Fiscal Quarter for which financial statements are available immediately preceding the date on which such ~~fiscal quarter~~investment, acquisition or disposition is consummated: (1) unaudited pro forma consolidated financial information of Holdings and ~~the related (a) consolidated statement of operations for such fiscal quarter and~~ its Subsidiaries for the ~~portion~~ Fiscal Year ended immediately prior to the date on which such investment, acquisition or disposition is consummated, and (2) for any interim period that has elapsed since the prior Fiscal Year end, including an officer’s certificate setting forth in reasonable detail pro forma Adjusted EBITDA of ~~the fiscal year then ended~~ Holdings and ~~(b)~~ its Subsidiaries on a consolidated ~~statement~~ basis for each of ~~cash flows for the portion of the fiscal year then ended, setting forth~~such periods, in each case giving effect to such investment, acquisition or disposition and any related financing transaction as if it had occurred on the first day of the relevant period; provided that this pro forma financial information shall not be required if (A) pro forma financial information would not otherwise be required pursuant to Regulation S-X if Holdings were subject to Sections 13 or 15(d) of the Exchange Act or (B) Holdings is prohibited by applicable law from disclosing, or, after using commercially reasonable efforts to obtain the contractual right to disclose, does not have a contractual right to disclose, such information; provided that in the case of clause (B), Holdings provides an officer’s certificate setting forth in reasonable detail pro forma Adjusted EBITDA giving pro forma effect to the investment, acquisition or disposition of Holdings and its Subsidiaries on a consolidated basis for the most recently ended four Fiscal Quarters for which financial statements are available immediately preceding ~~clauses~~ the date on which such investment, acquisition or disposition is consummated. (ab) None of the reports referenced in Section 5.1(a)(i), (ii), (iii) and (biv) will be required to (1) comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, or Items 301 or 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in ~~comparative form~~ each case, as in effect on the ~~figures~~ date of this Agreement, or (2) contain the separate financial information for Guarantors or Subsidiaries contemplated by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the ~~corresponding fiscal quarter~~ SEC (or any similar successor provision). The requirements set forth in Section 5.1(a) and Section 5.1(c) may be satisfied by (i) delivering such information electronically to the Administrative Agent and (ii) posting copies of such information on a website (which may be maintained by Holdings or a third party) to which access will be given to the Administrative Agent, Lenders and prospective Lenders. (c) Notwithstanding the foregoing, at all times that Holdings is subject to the reporting requirements of Section 13 or 15(d) of the ~~previous fiscal year~~ Exchange Act, the reporting requirements of Section 5.1(a) (other than the officer’s certificate described in Section 5.1(a)(iv)(2)(B)) shall be satisfied through the filing with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to Holdings, all the ~~corresponding portion~~ reports on Form 10-K, Form 10-Q and Form 8-K that Holdings is required to file with the SEC pursuant to Section 13 or 15(d) of the ~~previous fiscal year~~Exchange Act, ~~accompanied by an Officer’s Certificate stating~~ in each case in a manner that ~~such financial statements fairly present~~ complies in all material respects with the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations requirements specified in the ~~form customarily prepared~~ applicable forms promulgated by ~~management of~~ the ~~Borrower;~~SEC. (3d) The Borrower shall deliver to the Administrative Agent, within ~~ninety (90)~~ 120 days after the end of each ~~fiscal year~~ Fiscal Year, an Officers’ Certificate stating that, in the course of the ~~Borrower~~performance by the signer of his or her duties as an Officer, ~~commencing with respect to~~ he or she would normally have notice of a default by Holdings or the ~~fiscal year ending December 31, 2024~~Borrower in the performance of any obligations contained in this Agreement, a ~~consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ review of the ~~Borrower for its internal use (including any projected consolidated balance sheet~~ activities of ~~the Borrower~~ Holdings and its Subsidiaries as during the preceding Fiscal Year has been made under the supervision of the ~~end~~ signing Officers with a view to determining whether each of Holdings and the Borrower has kept, observed, performed and fulfilled its obligations under this Agreement, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge each of Holdings and the Borrower has kept, observed, performed and fulfilled each and every covenant contained in this Agreement and is not in default in the performance or observance of any of the ~~following fiscal year~~ terms, provisions and conditions of this Agreement (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what actions Holdings and the ~~related consolidated statements of projected income, in each case,~~ Borrower are taking or propose to take with respect thereto) and that to the ~~extent prepared~~ best of his or her knowledge no event has occurred and remains in existence by ~~management~~ reason of which payments on account of the principal of or interest on the Loans is prohibited or if such event has occurred, a description of the event and what actions Holdings and the Borrower ~~and included in such consolidated budget)~~are taking or propose to take with respect thereto. (e) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, ~~which projected~~ the year-end financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section ~~6.01(1~~5.1(a)(i) ~~and Section 6.01(2), at~~ shall be accompanied by a ~~date and time to~~ written statement of Holdings’ independent public accountants (who shall be ~~determined by Borrower~~ a firm of established national reputation) that in ~~consultation with~~ making the ~~Administrative Agent after delivery~~ examination necessary for certification of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, ~~the obligations referred~~ nothing has come to ~~in Sections 6.01(1) and 6.01(2) may be satisfied with respect~~ their attention that would lead them to ~~financial information of~~ believe that Holdings or the Borrower ~~and its Subsidiaries by furnishing (A) the applicable financial statements~~ has violated any provisions of ~~any Parent Company~~ Section 5 or ~~(B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this~~ Section ~~6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower~~6 hereof or, if any such violation has occurred, specifying the nature and ~~so long as such Parent Company will have Independent Assets or Operations~~period of existence thereof, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) accountants shall not be ~~required~~ liable directly or indirectly to ~~contain all purchase accounting adjustments relating~~ any Person for any failure to ~~the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include~~ obtain knowledge of any such ~~adjustments in such financial statements~~violation.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Solera Holdings, Inc)

Financial Statements and Other Reports. ~~Deliver~~ After the Closing Date, the Company agrees to send the ~~Administrative Agent for prompt further distribution by the Administrative Agent~~ following reports to each ~~Lender~~ holder of Series C Preferred Stock: (a) so long as the Company is subject to the ~~limitations on distribution of any such information to Public Lenders as described in~~ requirements of, or otherwise making filings pursuant to, Section ~~6.02~~13 or 15(d) ~~each~~ of the ~~following:~~Exchange Act, within three (3) days after the filing with the Commission, a copy of its Annual Report on Form 10-KSB or Form 10-K, its Quarterly Reports on Form 10-QSB or Form 10-Q, any proxy statements or information statements and any Current Reports on Form 8-K, together in each case with amendments thereto; (1b) within ~~ninety~~ one day after release, copies of all press releases issued by the Company or any of its Subsidiaries; (90c) promptly upon receipt thereof, copies of reports, if any, submitted to the Company by independent accountants in connection with each annual or interim audit of the books of the Company made by such accountants; and (d) all other information sent to holders of the Common Stock or any other equity security holder. Without limiting the foregoing, the Company shall deliver to Purchaser until Purchaser transfers, assigns (except in the case of an assignment to an Affiliate) or sells all of its Series C Preferred Stock (i) as soon as practicable and in any event within 45 days after the end of each fiscal quarter, the following information: consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year to the end of such fiscal period and a comparison of each such item to the then current budget, and the balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal period, setting forth in each case in comparative form figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, certified as to fair presentation by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form; and (ii) as soon as practicable and in any event within 90 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ the ~~fiscal year ending December 31~~following information: statements of income, ~~2024~~stockholders' equity and cash flows of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries as at the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form corresponding figures from the ~~figures for the previous~~ preceding fiscal year, ~~in reasonable detail and all~~ prepared in accordance with ~~GAAP~~generally accepted accounting principles consistently applied throughout the periods involved, ~~audited~~ and accompanied by ~~a report and~~ an opinion of ~~an independent registered public accounting~~ BDO ▇▇▇▇▇▇▇ ▇▇, or another firm of ~~nationally~~ independent public accountants of recognized national standing ~~or another accounting firm reasonably acceptable~~ selected by the Company, to the ~~Administrative Agent,~~ effect that the consolidated financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which ~~report~~ such accountants concur and ~~opinion (a~~as are noted therein) ~~will be prepared~~ and present fairly the financial condition of the Company and its consolidated Subsidiaries and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and ~~(b) will not be subject to any qualification as to the scope of~~ accordingly included such ~~audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ tests of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ accounting records and such other auditing procedures as were considered necessary in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, circumstances; and accompanied by a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement~~ written discussion of operations ~~for~~ by management in summary form with respect to such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, ~~accompanied~~ including a comparison to budget. Purchaser is hereby authorized to deliver a copy of any financial statement delivered to it pursuant to this SECTION 4.2 to any regulatory body having jurisdiction over it that requests such information. Subject to compliance with reasonable confidentiality requirements imposed by ~~an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ the ~~financial condition~~Company, ~~results of operations and cash flows of~~ Purchaser shall have reasonable access to the ~~Borrower~~ Company, including its management, and its ~~Subsidiaries in accordance with GAAP~~books and records during regular business hours and is further authorized to request information from and to have access to, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. FurtherCompany's expense, the ~~Borrower~~ Company's independent public accountants. The Company shall ~~conduct live quarterly conference calls that the Lenders may attend~~ request such accountants to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant make available to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent Purchaser such information ~~relates to a Parent Company of the Borrower, if and so long~~ as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information Purchaser may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Securities Purchase Agreement (Electric City Corp)

Financial Statements and Other Reports. ~~Deliver~~ After the Closing Date, the Company agrees to send the ~~Administrative Agent for prompt further distribution by the Administrative Agent~~ following reports to each ~~Lender~~ holder of Series A Preferred Stock: (a) so long as the Company is subject to the ~~limitations on distribution of any such information to Public Lenders as described in~~ requirements of, or otherwise making filings pursuant to, Section ~~6.02~~13 or 15(d) ~~each~~ of the ~~following:~~ Exchange Act, within three days after the filing with the Commission, a copy of its Annual Report on Form 10–KSB or Form 10-K, its Quarterly Reports on Form 10–QSB or Form 10-Q, any proxy statements or information statements and any Current Reports on Form 8–K, together in each case with amendments thereto; (1b) within ~~ninety~~ one day after release, copies of all press releases issued by the Company or any of its Subsidiaries; (90c) promptly upon receipt thereof, copies of reports, if any, submitted to the Company by independent accountants in connection with each annual or interim audit of the books of the Company made by such accountants; and (d) all other information sent to holders of the Common Stock or any other equity security holder. Without limiting the foregoing, the Company shall deliver to each Purchaser until such Purchaser transfers, assigns (except in the case of an assignment to an Affiliate) or sells all of its Series A Preferred Stock (a) as soon as practicable and in any event within 45 days after the end of each fiscal quarter, the following information: consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year to the end of such fiscal period and a comparison of each such item to the then current budget, and the balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal period, setting forth in each case in comparative form figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, certified as to fair presentation by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form; and (b) as soon as practicable and in any event within 90 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ the ~~fiscal year ending December 31~~following information: statements of income, ~~2024~~stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries as at the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form corresponding figures from the ~~figures for the previous~~ preceding fiscal year, ~~in reasonable detail and all~~ prepared in accordance with ~~GAAP~~generally accepted accounting principles consistently applied throughout the periods involved, ~~audited~~ and accompanied by ~~a report and~~ an opinion of ~~an independent registered public accounting~~ BDO ▇▇▇▇▇▇▇ ▇▇, or another firm of ~~nationally~~ independent public accountants of recognized national standing ~~or another accounting firm reasonably acceptable~~ selected by the Company, to the ~~Administrative Agent,~~ effect that the consolidated financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which ~~report~~ such accountants concur and ~~opinion (a~~as are noted therein) ~~will be prepared~~ and present fairly the financial condition of the Company and its consolidated Subsidiaries and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and ~~(b) will not be subject to any qualification as to the scope of~~ accordingly included such ~~audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ tests of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ accounting records and such other auditing procedures as were considered necessary in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, circumstances; and accompanied by a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement~~ written discussion of operations ~~for~~ by management in summary form with respect to such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, ~~accompanied~~ including a comparison to budget. Each Purchaser is hereby authorized to deliver a copy of any financial statement delivered to it pursuant to this Section 4.2 to any regulatory body having jurisdiction over it that requests such information. Subject to compliance with reasonable confidentiality requirements imposed by ~~an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ the ~~financial condition~~Company, ~~results of operations and cash flows of~~ each Purchaser shall have reasonable access to the ~~Borrower~~ Company, including its management, and its ~~Subsidiaries in accordance with GAAP~~books and records during regular business hours and is further authorized to request information from and to have access to, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. FurtherCompany’s expense, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s ~~Form 10-K or 10-Q, as applicable, filed with the SEC (and the~~ independent public ~~filing of~~ accountants. The Company shall request such ~~report with the SEC shall constitute delivery under this Section 6.01); provided that with respect~~ accountants to ~~each of the preceding clauses (A) and (B), (1)~~ make available to ~~the extent~~ any Purchaser such information ~~relates to a Parent Company of the Borrower, if and so long~~ as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information Purchaser may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Securities Purchase Agreement (Electric City Corp)

Financial Statements and Other Reports. ~~Deliver~~ After the Closing Date, the Company agrees to send the following reports to the ~~Administrative Agent for prompt further distribution by~~ holder of Series A Preferred Stock: (a) so long as the ~~Administrative Agent to each Lender (~~Company is subject to the ~~limitations on distribution of any such information to Public Lenders as described in~~ requirements of, or otherwise making filings pursuant to, Section ~~6.02~~13 or 15(d) ~~each~~ of the ~~following:~~ Exchange Act, within three days after the filing with the Commission, a copy of its Annual Report on Form 10-KSB or Form 10-K, its Quarterly Reports on Form 10-QSB or Form 10-Q, any proxy statements or information statements and any Current Reports on Form 8-K, together in each case with amendments thereto; (1b) within ~~ninety~~ one day after release, copies of all press releases issued by the Company or any of its Subsidiaries; (90c) promptly upon receipt thereof, copies of reports, if any, submitted to the Company by independent accountants in connection with each annual or interim audit of the books of the Company made by such accountants; and (d) all other information sent to holders of the Common Stock or any other equity security holder. Without limiting the foregoing, the Company shall deliver to the Purchaser until the Purchaser transfers, assigns (except in the case of an assignment to an Affiliate) or sells all of its Series A Preferred Stock (a) as soon as practicable and in any event within 45 days after the end of each fiscal quarter, the following information: consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year to the end of such fiscal period and a comparison of each such item to the then current budget, and the balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal period, setting forth in each case in comparative form figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, certified as to fair presentation by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form; and (b) as soon as practicable and in any event within 90 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with~~ the ~~fiscal year ending December 31~~following information: statements of income, ~~2024~~stockholders' equity and cash flows of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries as at the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form corresponding figures from the ~~figures for the previous~~ preceding fiscal year, ~~in reasonable detail and all~~ prepared in accordance with ~~GAAP~~generally accepted accounting principles consistently applied throughout the periods involved, ~~audited~~ and accompanied by ~~a report and~~ an opinion of ~~an independent registered public accounting~~ BDO ▇▇▇▇▇▇▇ ▇▇, or another firm of ~~nationally~~ independent public accountants of recognized national standing ~~or another accounting firm reasonably acceptable~~ selected by the Company, to the ~~Administrative Agent,~~ effect that the consolidated financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except for changes in application in which ~~report~~ such accountants concur and ~~opinion (a~~as are noted therein) ~~will be prepared~~ and present fairly the financial condition of the Company and its consolidated Subsidiaries and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and ~~(b) will not be subject to any qualification as to the scope of~~ accordingly included such ~~audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ tests of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except~~ accounting records and such other auditing procedures as were considered necessary in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, circumstances; and accompanied by a ~~consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement~~ written discussion of operations ~~for~~ by management in summary form with respect to such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, ~~accompanied~~ including a comparison to budget. The Purchaser is hereby authorized to deliver a copy of any financial statement delivered to it pursuant to this SECTION 4.2 to any regulatory body having jurisdiction over it that requests such information. Subject to compliance with reasonable confidentiality requirements imposed by ~~an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ the ~~financial condition~~Company, ~~results of operations and cash flows of~~ the ~~Borrower~~ Purchaser shall have reasonable access to the Company, including its management, and its ~~Subsidiaries in accordance with GAAP~~books and records during regular business hours and is further authorized to request information from and to have access to, ~~subject~~ at the Company's expense, the Company's independent public accountants. The Company shall request such accountants to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect make available to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent Purchaser such information ~~relates to a Parent Company of~~ as the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information Purchaser may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Securities Purchase Agreement (Electric City Corp)

Financial Statements and Other Reports. Deliver or cause to be delivered to the ~~Administrative~~ Agent for ~~prompt further distribution by the Administrative Agent to~~ each ~~Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~Borrower: (1a) ~~within ninety~~ As soon as practicable, but in any event not later than sixty (9060) days after the end of each fiscal quarter of the Borrower (including for the fourth fiscal quarter, which shall be subject to normal year end audit adjustments), the management prepared consolidating balance sheet of the Borrower and its Subsidiaries at the end of such quarter, and the related management prepared consolidating statements of earnings for such quarter, each setting forth in comparative form the figures for the same fiscal quarter of the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP. (b) As soon as practicable, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of the Borrower, ~~commencing with~~ the ~~fiscal year ending December 31, 2024, a~~ audited consolidated and unaudited consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such ~~fiscal~~ year, and the related ~~consolidated~~ statements of ~~operations~~ earnings and cash flows for such ~~fiscal~~ year, ~~together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower,~~ each setting forth ~~in each case~~ in comparative form the figures for the previous fiscal ~~year,~~ year and all such statements to be in reasonable ~~detail and all~~ detail, prepared in accordance with GAAP, ~~audited~~ and accompanied by a an auditor's report ~~and opinion of~~ prepared without qualification by an independent ~~registered~~ certified public ~~accounting firm of nationally recognized standing or another accounting firm~~ accountant reasonably acceptable to the ~~Administrative~~ Agent~~, which report and opinion~~ . (ac) ~~will be prepared in accordance~~ Concurrently with ~~generally accepted auditing standards and (b) will not be subject to any qualification as to~~ the ~~scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity~~ delivery of the ~~Facilities, (ii) any anticipated inability~~ financial statements referred to ~~satisfy the Financial Covenant or (iii) except~~ in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses Sections 6.2 (a) and (b)) above, a certificate (to be in ~~comparative~~ the form of Exhibit F or on such other form as the ~~figures for~~ Agent may from time to time prescribe) of an Authorized Representative stating that, to the ~~corresponding fiscal quarter~~ best of such Authorized Representative's knowledge, the ~~previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that~~ Borrower during such ~~financial statements fairly present~~ period observed or performed in all material respects ~~the financial~~ all of their covenants and other agreements, and satisfied in all material respects every material condition, ~~results~~ contained in this Agreement or the other Loan Documents to be observed, performed or satisfied by them, and that such Authorized Representative has obtained no knowledge of ~~operations~~ any Default except as specified in such certificate and ~~cash flows of~~ such certificate shall include the ~~Borrower and its Subsidiaries~~ calculations in ~~accordance with GAAP, subject~~ reasonable detail required to ~~normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of~~ indicate the Borrower;'s compliance with financial covenants set forth in Article 7 hereof. (3d) As soon as available and in any event within ~~ninety~~ sixty (9060) days after the end of each fiscal ~~year of~~ quarter in the Borrower~~, commencing with respect to the~~ 's fiscal ~~year ending December 31, 2024~~year, a consolidated ~~budget~~ loan production report as of the end of that fiscal quarter, presenting the total dollar volume and the number of Mortgage Loans originated and closed or purchased during that fiscal quarter and for the ~~following~~ fiscal ~~year on~~ year-to-date, specified by property type and loan type. (e) As soon as available and in any event within 60 days after the end of each calendar quarter, a ~~quarterly basis as customarily prepared by management of the Borrower for its internal use~~ consolidated report (~~including any projected consolidated balance sheet of the Borrower and its Subsidiaries~~ "Servicing Portfolio Report") as of the end of the ~~following fiscal year~~ calendar quarter, as to all Mortgage Loans the servicing rights to which are owned by the Borrower (specified by investor type, recourse and non-recourse) regardless of whether the ~~related consolidated statements~~ Mortgage Loans are Pledged Loans. The Servicing Portfolio Report must indicate which Mortgage Loans (1) are current and in good standing, (2) are more than 30, 60 or 90 days past due, (3) are the subject of ~~projected income~~pending bankruptcy or foreclosure proceedings, or (4) have been converted (through foreclosure or other proceedings in ~~each case~~lieu of foreclosure) into real estate owned by, the Borrower. (f) At the Agent's request, a commitment summary and pipeline report dated as of the end of such month and in form, substance and scope acceptable to the ~~extent prepared~~ Agent. (g) Promptly after the Borrower's receipt thereof, copies of all accountants' management letters delivered to the Borrower or its Subsidiaries. (h) Within ten (10) days after filing, copies of all regular or periodic financial and other reports, if any, which the Borrower shall file with the Securities and Exchange Commission or any governmental agency successor thereto and copies of any audits completed by ~~management~~ Ginnie Mae, Freddie Mac, Fannie Mae, FHA, or HUD. (i) Fro▇ ▇▇▇e to t▇▇▇, ▇ith r▇▇▇▇▇▇b▇▇ promptness, such further information regarding the business, operations, properties or financial condition of the Borrower ~~and included in such consolidated budget), which projected financial statements shall be prepared in good faith on~~ as the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results Agent may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower will furnish or cause to be furnished financial statements and other monthly, quarterly or other periodic reports to the ~~Administrative~~ Agent ~~for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02)~~ and each of the ~~following~~Lenders with respect to the Consolidated Group as follows: (1a) within ninety (90) days after the ~~end~~ close of each fiscal ~~year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal~~ year, the consolidated audited balance sheets and ~~the related~~ audited consolidated statements of ~~operations~~ income, retained earnings and cash flows (the "Financial Statements") for such ~~fiscal~~ year, ~~together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~and, setting forth in ~~each case in~~ comparative form the corresponding figures for the ~~previous fiscal~~ preceding year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted ~~auditing standards~~ accounting principles consistently applied, accompanied by a report and ~~(b) will not be subject to any qualification as to~~ unqualified opinion of Pricewaterhouse or another independent certified public accountant selected by Borrower and approved by the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant)Agent; (2b) within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year, the unaudited consolidated balance sheet, consolidated income statement and a consolidated statement of cash flows similar to those required by clause (a) above (but with a requirement as to comparison with the prior year) as of the ~~first three (3) fiscal quarters~~ end of ~~each fiscal year~~ such Fiscal Quarter and for such Fiscal Quarter then ended and for the Fiscal Quarter from the beginning of the current Fiscal Year to the end of such Fiscal Quarter, prepared in accordance with generally accepted accounting principles consistently applied and certified as to preparation in accordance with generally accepted accounting principles and that such statements fairly present the financial condition of the Consolidated Group at the dates thereof and for the periods then ended, on behalf of the Borrower ~~commencing with September 30~~by its chief financial officer, ~~2024~~subject only to changes resulting from audit and normal year-end adjustments; (c) at the delivery of each quarterly and annual statement, a ~~consolidated balance sheet~~ detailed computation showing compliance with the Financial Covenants and the annual budget certified by the chief financial officer of the Borrower or other designated officer of Borrower acceptable to Agent ("Compliance Certificate"), and ~~its Subsidiaries as~~ further certifying that such officer has caused this Agreement to be reviewed and has no knowledge of any Default by it in the performance or observance of any of the provisions hereof, during such month or at the end of such ~~fiscal quarter~~year, or, if such officer has such knowledge, specifying each Default and the ~~related~~ nature thereof; (ad) ~~consolidated statement of operations for such fiscal quarter~~ a report from Pricewaterhouse (or another independent certified public accountant selected by Borrower and ~~for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth~~approved by Agent and, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of ~~footnotes~~approval, ~~together with management’s discussion and analysis describing results~~ Agent may select any of ~~operations in the form customarily prepared by management~~ Pricewaterhouse or other Big Five accounting firm) certifying, without material qualification, (i) within sixty (60) days of the ~~Borrower;~~ end of each Fiscal Quarter, the accuracy of the quarter-end Borrowing Base Report, (3ii) within ninety (90) days ~~after~~ of the end of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower, commencing~~ compliance by Borrower with ~~respect to~~ the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year Financial Covenants and the ~~related consolidated statements of projected income,~~ covenants set forth in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.60 69

Appears in 1 contract

Sources: Senior Secured Facilities Credit Agreement (Wci Communities Inc)

Financial Statements and Other Reports. ~~Deliver~~ (a) From and after the Closing Date, Azul shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingTrustee: (1i) ~~within ninety (90) days after the end of each fiscal year~~ an English language version of the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ Parent Guarantor’s annual audited consolidated ~~balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated~~ financial statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with ~~GAAP, audited and accompanied by a report and opinion~~ IFRS promptly upon such financial statements becoming available but not later than 120 days after the close of its fiscal year; (ii) an ~~independent registered public accounting firm~~ English language version of ~~nationally recognized standing or another accounting firm reasonably acceptable to~~ the ~~Administrative Agent, which report and opinion (a) will be~~ Parent Guarantor’s unaudited interim condensed consolidated financial statements prepared in accordance with ~~generally accepted auditing standards and~~ IFRS promptly upon such statements becoming available but not later than 60 days after the close of each fiscal quarter (~~b) will not be subject to any qualification as to~~ other than the ~~scope~~ last fiscal quarter of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenantits fiscal year); (2iii) ~~within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30~~without duplication, ~~2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end~~ English language versions or summaries of such ~~fiscal quarter,~~ other reports or notices as may be filed or submitted by (and promptly after filing or submission by) the ~~related~~ Guarantors with (a) ~~consolidated statement of operations for such fiscal quarter and for~~ the ~~portion of the fiscal year then ended and~~ CVM or (b) ~~consolidated statement of cash flows for~~ the ~~portion of the fiscal year then ended, setting forth, in each case of the preceding clauses~~ SEC (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent ~~prepared by management~~ that any such report or notice is generally available to security holders of the ~~Borrower and included~~ Parent Guarantor or the public in ~~such consolidated budget~~Brazil or elsewhere and, in the case of clause (b), ~~which projected financial statements~~ is filed or submitted pursuant to Rule 12g3-2(b) under, or Section 13 or 15(d) of, the Exchange Act, or otherwise); (iv) within 90 days after the end of the fiscal year, a certificate of a Responsible Officer of the Parent Guarantor certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (v) no later than 45 days after the end of each Quarterly Reporting Period (or, in respect of the last Quarterly Reporting Period of its fiscal year, 60 days), a certificate of a Responsible Officer of the Parent Guarantor, certifying the Liquidity as of the last day of such Quarterly Reporting Period; (vi) on each (a) Allocation Date, an Allocation Date Statement and (b) no later than ten Business Days following the start of each Quarterly Reporting Period, a Quarterly Freeflow Threshold Statement, in each case to the Trustee and the U.S. Collateral Agent and the Brazilian Collateral Agent. The Trustee may, prior to the related Distribution Date, provide notice to the Issuer and the U.S. Collateral Agent and the Brazilian Collateral Agent of any information contained in the Allocation Date Statement that the Trustee believes to be incorrect. If the Trustee provides such a notice, the Issuer shall ~~be prepared in good faith~~ use its reasonable efforts to resolve the discrepancy and provide an updated Allocation Date Statement on or prior to the related Distribution Date. If the discrepancy is not resolved and a replacement Allocation Date Statement is not received by the Trustee prior to the payment of available funds on the ~~basis~~ related Distribution Date pursuant to the provisions of ~~assumptions believed~~ the Payment Waterfalls and it is later determined that the information identified by the Trustee as incorrect was in fact incorrect and such error resulted in a party receiving a smaller distribution on the Distribution Date than they would have received had there not been such an error, then the Issuer shall indemnify such party for such shortfall. For the avoidance of doubt and, notwithstanding anything to ~~be reasonable at~~ the ~~time~~ contrary in this Indenture or in any Collateral Document, the Trustee shall have no obligation to inquire into, investigate, verify or perform any calculations in connection with an Allocation Date Statement or notice from the Trustee in respect of ~~preparation of such projected financial statements (~~the same; it being understood and agreed that the Trustee shall be entitled to conclusively rely, and shall not be liable for so relying, on the Allocation Date Statement last received by it on or prior to each Distribution Date and the Trustee shall have no obligation, responsibility or liability in connection with any ~~such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control~~ indemnification payment of the ~~Loan Parties~~ Issuer pursuant to the immediately preceding sentence; (vii) as soon as possible, and in any event within 15 Business Days after the Chief Financial Officer or the Treasurer of Azul becoming aware of the occurrence of a Default or an Event of Default that ~~no assurance can be given that any particular projections will be realized~~is continuing, ~~that actual results may differ~~ an Officer’s Certificate specifying such Default or Event of Default and ~~that such differences may be material)~~what action the Parent Guarantor and its Subsidiaries are taking or propose to take with respect thereto; and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (iiviii) any ~~anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements~~ other reports required to be delivered pursuant to ~~Sections 6.01(1~~the requirements of the Intercreditor Agreement at the same time such reports are delivered as required thereunder. (b) In no event shall the Trustee be entitled to inspect, receive and make copies of materials (except in connection with any enforcement or exercise of remedies in the case of clause (A)) (A) that constitute non-registered Intellectual Property, Azul Fidelidade Customer Data, Azul Traveler Data, Azul Cargo Customer Data or non-financial proprietary information, (B) in respect of which disclosure to the Trustee, any Collateral Agent or any Holder (or their respective representatives or contractors) is prohibited by law or any binding agreement (or would otherwise cause a breach or default thereunder) or ~~6.01(2~~(C) that are subject to attorney client or similar privilege or constitute attorney work product. (c) The requirement for the Parent Guarantor to deliver to the Trustee the information or reports referred to in clauses (i) through (iii) above shall be deemed satisfied if such information or report has been filed with the SEC through the Electronic Data Gathering Analysis and Retrieval (EDGAR) system (or any successor method of filing) or if such information or report is made available on the Parent Guarantor’s website (and the Parent Guarantor shall provide the relevant URL to the Trustee upon request). (d) The requirement for the Parent Guarantor to deliver to the Trustee the information, reports or certificates referred to in clauses (iv) through (viii) above shall be deemed satisfied if, at its option, the Parent Guarantor (A) files such information, reports or certificates with the SEC through the Electronic Data Gathering Analysis and Retrieval (EDGAR) system (or any successor method of filing) or if such information report is made available on the Parent Guarantor’s website (and the Parent Guarantor shall provide the relevant URL to the Trustee upon request), and (B) provides written notice to the Trustee that such information, reports or certificates have been so filed or made available. (e) In addition, any information required to be delivered pursuant to this Indenture to the Trustee pursuant to clauses (i) through (viii) above may, at the option of the Parent Guarantor, be made available by the Trustee to the Holders by posting such information on the Parent Guarantor’s website at a website address to be notified to the Holders from time to time. (f) The Trustee shall have no responsibility to determine if and when any information, reports or certificates have been made available online. Delivery of reports, information and documents to the Trustee is for informational purposes only and its receipt of such reports, information and documents shall not ~~be required to contain all purchase accounting adjustments relating to~~ constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance by the ~~Transactions~~ Issuer, Guarantor or any other ~~transaction(s) permitted hereunder~~ Person with any of its covenants under this Indenture or the Superpriority Notes (as to which the ~~extent it~~ Trustee is ~~not practicable~~ entitled to ~~include~~ rely exclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the content, filing or timeliness of any ~~such adjustments~~ report or other information delivered, filed or posted under or in ~~such financial statements~~connection with this Indenture, the other Transaction Documents or the transactions contemplated thereunder. The Trustee has no duty to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to matters disclosed in any reports or other documents filed with the SEC or EDGAR or any website under this Indenture.

Appears in 1 contract

Sources: Indenture (Azul Sa)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower shall deliver to the ~~Administrative~~ Agent ~~for prompt further distribution by the Administrative Agent~~ (which shall promptly provide copies to each ~~Lender (subject to~~ Lender), for the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02) each~~ benefit of the ~~following~~Lenders: ~~(1)~~ 5.1.1 as soon as practicable and in any event within ~~ninety (90)~~ 120 days after the end of each ~~fiscal year of~~ Fiscal Year, the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at of the end of such ~~fiscal year,~~ year and the related ~~consolidated~~ statements of ~~operations~~ earnings, stockholder's equity and cash ~~flows~~ flow of the Borrower for such ~~fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~Fiscal Year, setting forth in each case in comparative form the figures for the previous ~~fiscal year~~Fiscal Year, all in reasonable detail ~~and all prepared in accordance with GAAP~~and, ~~audited and~~ accompanied by a an unqualified report thereon of Deloitte & Touche LLP or other independent certified public accountants of recognized national standing selected by the Borrower and ~~opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm~~ reasonably ~~acceptable~~ satisfactory to the ~~Administrative Agent~~Required Lenders, which report shall state that such financial statements fairly present the financial position of the Borrower as of the date indicated and ~~opinion~~ its results of operations and cash flows for the periods indicated in conformity with GAAP (aexcept as otherwise stated therein) ~~will be prepared~~ and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant)standards; ~~(2)~~ 5.1.2 as soon as practicable and in any event within ~~forty-five (45)~~ 60 days after the end of each Fiscal Quarter (other than the last Fiscal Quarter of ~~the first three (3~~any Fiscal Year) ~~fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024,~~ a consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of the end of such quarter and the related statements of earnings, stockholder's equity and cash flow for such quarter and the portion of the Fiscal Year ended at the end of such ~~fiscal~~ quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting ~~forth,~~ forth in each case ~~of the preceding clauses (a) and (b),~~ in comparative form the figures for the corresponding ~~fiscal quarter~~ periods of the ~~previous fiscal year~~ prior Fiscal Year, all in reasonable detail and certified by the ~~corresponding portion~~ Borrower's Chief Financial Officer as fairly presenting the financial condition of the ~~previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects~~ Borrower as of the ~~financial condition,~~ dates indicated and its results of operations and cash flows of for the ~~Borrower and its Subsidiaries in accordance with GAAP~~periods indicated, subject to normal year-end ~~adjustments~~ adjustments; 5.1.3 together with each delivery of financial statements pursuant to Sections 5.1.1. and 5.1.2., a certificate of the Chief Financial Officer or a President of the Borrower substantially in the form of Exhibit F-6 (a "Compliance Certificate"), duly completed, setting forth the calculations required to establish compliance with Section 6.3., on the date of such financial statements; 5.1.4 within five Business Days after the Borrower becomes aware of the occurrence of any Default or Event of Default, a certificate of a Senior Officer of the Borrower setting forth the details thereof and the ~~absence~~ action that the Borrower is taking or proposes to take with respect thereto; 5.1.5 promptly upon their becoming available, copies of ~~footnotes~~all material reports, notices and proxy statements sent or made available by the Borrower to its security holders, and all material registration statements (other than the 33 exhibits thereto) and annual, quarterly or monthly reports, if any, filed by the Borrower with the SEC; 5.1.6 within five Business Days after Borrower becomes aware of the occurrence of an ERISA Event, a statement of a Senior Officer of the Borrower setting forth the details thereof and the action that the Borrower is taking or proposes to take with respect thereto, together with ~~management’s discussion and analysis describing results of operations in the form customarily prepared by management~~ a copy of the ~~Borrower; (3)~~ notice, if any, of such event given or required to be given to the PBGC; within ~~ninety (90)~~ five days ~~after the end of each fiscal year~~ of the ~~Borrower, commencing with respect~~ date the Borrower or any member of the Controlled Group becomes obliged to ~~the fiscal year ending December 31, 2024~~make or accrue a contribution to a Multiemployer Plan, a ~~consolidated budget for the following fiscal year on~~ statement of a ~~quarterly basis as customarily prepared by management~~ Senior Officer of the Borrower ~~for~~ setting forth the details thereof and the action that the Borrower is taking or proposes to take with respect thereto; 5.1.7 within five Business Days after the Borrower obtains knowledge thereof, notice of all litigation or proceedings commenced or threatened affecting the Borrower or any Subsidiary (a) that would reasonably be expected to have a Material Adverse Effect or (b) that questions the validity or enforceability of any Loan Document; 5.1.8 promptly notify the Agent of any move of its ~~internal use (including any projected consolidated balance sheet~~ principal executive office from the State of Washington; and 5.1.9 from time to time such additional information regarding the Borrower and its Subsidiaries as or the business, assets, liabilities, prospects, results of ~~the end~~ operation or financial condition of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such ~~projections are not to be viewed~~ Person as ~~facts~~the Agent, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements on behalf of any ~~Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q~~Lender Party, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsrequest.

Appears in 1 contract

Sources: Revolving Credit Facility (Nordstrom Inc)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingBank: (1i) as soon as available and in any event within ~~ninety (90)~~ 60 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three ~~(3)~~ fiscal quarters of each fiscal year of or 120 days (in the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the ~~preceding clauses (a) and (b~~fourth fiscal quarter), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a ~~consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected~~ consolidated balance sheet of the Borrower and its Subsidiaries as of the end of ~~the following fiscal year~~ such quarter, and the related consolidated statements of ~~projected~~ income, ~~in each case, to the extent prepared by management~~ shareholders' equity and cash flows of the Borrower and ~~included~~ its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared 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 a certificate of a Responsible Officer of the Borrower stating that such ~~consolidated budget), which projected~~ financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss fairly present the financial condition of the Borrower and its Subsidiaries as at such date and the results of operations of the Borrower and its Subsidiaries for the ~~most recently~~ period ended ~~measurement period for which financial statements~~ on such date and have been ~~delivered pursuant~~ prepared in accordance with GAAP consistently applied, subject to ~~Section 6.01(1~~changes resulting from normal, year-end audit adjustments and except for the absence of notes; (ii) as soon as available and ~~Section 6.01(2)~~in any event within 120 days after the end of each fiscal year, at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information consolidated balance sheet of the Borrower and its Subsidiaries ~~by furnishing (A)~~ as of the ~~applicable financial~~ end of such fiscal year, and the related consolidated statements of ~~any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q~~income, ~~as applicable, filed with the SEC (~~shareholders' equity and ~~the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each~~ cash flows of the ~~preceding clauses (A)~~ Borrower and ~~(B)~~its Subsidiaries for such fiscal year, ~~(1) to the extent such information relates to a Parent Company of the Borrower~~prepared in accordance with GAAP consistently applied, ~~if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains~~ all in reasonable detail and setting forth in comparative form the ~~differences between~~ figures for the ~~information relating to such Parent Company and its Independent Assets or Operations~~previous fiscal year, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report ~~and opinion~~ thereon of ~~an independent registered public accounting~~ a firm of ~~nationally~~ independent certified public accountants of recognized ~~standing or another accounting firm reasonably acceptable to the Administrative Agent~~national standing, which report ~~and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will~~ shall not be ~~subject to any qualification~~ qualified as to (1) going concern, (2) any limitation in the scope of ~~such audit~~ the audit, or (~~but may contain a “going concern” or like qualification that is~~ 3) possible errors generated by financial reporting and related systems due to the Year 2000 problem; (iii) together with the financial statements required pursuant to clauses (i) ~~the impending maturity~~ and (ii), a Compliance Certificate of a Responsible Officer as of the ~~Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case~~ end of the ~~Revolving Facility~~applicable accounting period; (iv) promptly after the same are released, ~~an actual Default~~ copies of all press releases; and (v) promptly after the ~~Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1)~~ giving, sending or ~~6.01(2) shall not be required to contain~~ filing thereof, copies of all ~~purchase accounting adjustments relating~~ reports, if any, which the Borrower or any of its Subsidiaries sends to the ~~Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.~~holders of its respective capital

Appears in 1 contract

Sources: Credit Agreement (Seagate Technology Inc)

Financial Statements and Other Reports. ~~Deliver~~ The Company covenants that it will deliver to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingPurchaser: (1i) as soon as practicable and in any event within ~~ninety~~ 45 days after the end of each quarterly period (90other than the last quarterly period) in each fiscal year, consolidated statements of income, changes in stockholders' equity and cash flows of the Company and its consolidated Subsidiaries (including the Company Subsidiary) for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its consolidated Subsidiaries (including the Company Subsidiary) as of the end of such quarterly period; provided however, that delivery pursuant to clause (iii) below of a copy of the Company's periodic report on Form 10-Q for such period filed with the SEC shall be deemed to satisfy the requirements of this clause (i); (ii) as soon as practicable and in any event within 90 days after the end of each fiscal ~~year of the Borrower, commencing with the fiscal year ending December 31, 2024~~year, a consolidated balance sheet of the ~~Borrower~~ Company and its consolidated Subsidiaries (including the Company Subsidiary) as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ income, changes in stockholders' equity and cash flows for such fiscal year, together with ~~related notes thereto and management’s discussion and analysis describing results~~ the audit report of ~~operations in~~ KPMG LLP or other independent public accountants of recognized standing selected by the ~~form customarily prepared by management~~ Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity Annual Report on Form 10-K of the ~~Facilities, (ii) any anticipated inability~~ Company for such fiscal year filed with the SEC shall be deemed to satisfy the ~~Financial Covenant or~~ requirements of this clause (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be materialii); and (4a) ~~[reserved]. Further~~promptly upon transmission thereof, ~~the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results~~ copies of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of all such financial statements~~. Such live quarterly conference calls will review business performance~~ , proxy statements, notices and ~~key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred~~ reports as it shall send to ~~in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and~~ its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards stockholders and (b) ~~will not be subject~~ all such regular and periodic reports on Forms 10-K, 10-Q and 8-K (or similar or substitute forms) as it shall file with the SEC. The obligations of the Company to ~~any qualification as to~~ deliver the ~~scope of such audit (but may contain a “going concern” or like qualification that is due to~~ materials described in clauses (i) ~~the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or~~ through (iii) ~~except~~ of this Section 4.05 to Purchaser shall continue in ~~the case~~ full force and effect until such time as Purchaser shall no longer own Preferred Shares or Rights convertible into or exercisable for shares of Common Stock, or shares of Common Stock issued upon exercise of the ~~Revolving Facility, an actual Default~~ Rights or conversion of the ~~Financial Covenant). Any financial statements required~~ Preferred Shares, in either case equal to ~~be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to~~ at least 2% of the ~~Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~Common Stock then outstanding.

Appears in 1 contract

Sources: Stock Purchase Agreement (North Fork Bancorporation Inc)

Financial Statements and Other Reports. ~~Deliver~~ (a) The Company will, as soon as practicable after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to the ~~Administrative Agent~~ Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company for ~~prompt further distribution~~ the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the ~~Administrative Agent to each Lender (~~Company, subject to ~~the limitations on distribution~~ changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (c) below of ~~any such information to Public Lenders as described in Section 6.02) each~~ a copy of the ~~following:~~Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (a); (1b) ~~within ninety (90) days~~ The Company will, as soon as practicable after the end of each fiscal ~~year~~ year, furnish to Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the ~~Borrower~~Company for such year, ~~commencing with the fiscal year ending December 31, 2024,~~ and a consolidated balance sheet of the ~~Borrower and its Subsidiaries~~ Company as at of the end of such ~~fiscal~~ year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the corresponding figures ~~for~~ from the ~~previous~~ preceding fiscal year, all in reasonable detail and ~~all prepared in accordance with GAAP~~examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, ~~audited and accompanied by~~ however, that delivery pursuant to clause (c) below of a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity copy of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year Annual Report on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K ~~or 10-Q, as applicable,~~ of the Company for such fiscal year filed with the ~~SEC (and~~ Commission shall be deemed to satisfy the ~~public filing~~ requirements of ~~such report with the SEC shall constitute delivery under~~ this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and clause (b) ~~will not be subject to any qualification as~~ and; (c) The Company will, promptly upon transmission thereof, furnish to the ~~scope~~ Purchaser copies of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all ~~purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in~~ such financial statements, proxy statements, notices and reports as it shall send to its stockholders.

Appears in 1 contract

Sources: Series a Convertible Preferred Stock Purchase Agreement (Velocityhsi Inc)

Financial Statements and Other Reports. ~~Deliver~~ Provide to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each Bank all of the following, in form and detail satisfactory to Bank: (1a) ~~within ninety (90)~~ not later than 120 days after the end of each fiscal year of ~~the~~ Borrower~~, commencing with the fiscal year ending December 31, 2024~~, a consolidated balance sheet of ~~the~~ Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ income or operations, shareholders' equity and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all ~~prepared in accordance with GAAP,~~ audited ~~and accompanied~~ by a ~~report and opinion of an~~ registered independent ~~registered~~ public accounting firm of nationally recognized ~~standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and~~ standing; (b) ~~will~~ not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) later than 45 days after the end of each of the first three ~~(3)~~ fiscal quarters of each fiscal year of ~~the Borrower commencing with September 30, 2024~~Borrower, a consolidated balance sheet of ~~the~~ Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as at of the end of such fiscal ~~quarter,~~ quarter and the related ~~(a)~~ consolidated ~~statement~~ statements of ~~operations~~ income or operations, shareholders' equity and cash flows for such fiscal quarter and for the portion of ~~the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the~~ such fiscal year then ended, ~~setting forth~~all certified by the chief executive officer, ~~in each case~~ chief financial officer, treasurer, or corporate controller of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements Borrower as fairly ~~present~~ presenting in all material respects the financial condition, results of operations and cash flows of ~~the~~ Borrower and its ~~Subsidiaries~~ consolidated subsidiaries in accordance with ~~GAAP~~generally accepted accounting principles, subject only to normal year-end audit adjustments and the absence of footnotes~~, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~; (3c) ~~within ninety~~ contemporaneously with the reports described in the preceding Section 4.3(b), a report of litigation pending, or to the best of Borrower's knowledge threatened, against Borrower, provided such reports (90i) have been certified as to their accuracy by the chief executive officer, chief financial officer, treasurer, or corporate controller of Borrower, and (ii) disclose, at a minimum, all claims in excess of $500,000 or $1,500,000 in the aggregate; (d) either (i) such written and/or oral authorizations as may be necessary in order to permit the Bank to obtain duplicate copies of brokerage statements and statements of balances for the brokerage and deposit accounts secured by the Security Agreement, or (ii) not later than 15 days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and ~~its Subsidiaries~~ as of the end of each month, a brokerage statement and statement of balances for the ~~following fiscal year~~ brokerage and deposit accounts secured by the ~~related consolidated statements of projected income~~Security Agreement; (e) contemporaneously with each annual and quarterly financial statement required hereby, ~~in each case, to the extent prepared by management~~ a certificate of the chief executive officer, chief financial officer, treasurer, or corporate controller of Borrower ~~and included in such consolidated budget)~~that there exists no Event of Default nor any condition, act or event which ~~projected financial statements shall be prepared in good faith on~~ with the ~~basis~~ giving of ~~assumptions believed to be reasonable at~~ notice or the passage of time or both would constitute an Event of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material)Default; and (4f) ~~[reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend~~ from time to ~~discuss~~ time such other information regarding the financial condition ~~and results~~ or operation of ~~operations of the~~ Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation or compliance with the ~~Administrative Agent after delivery of such financial statements~~Loan Documents as Bank may reasonably request. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any All financial statements required to be delivered pursuant to ~~Sections 6.01(1~~Section 4.3(a) or ~~6.01(2~~(b) may be delivered electronically and, if so delivered, shall ~~not~~ be ~~required~~ deemed to ~~contain all purchase accounting adjustments relating~~ have been delivered on the date (i) on which Borrower posts such documents, or provides a link to such documents, on Borrower's website on the ~~Transactions~~ Internet at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or ~~any other transaction(s~~(ii) ~~permitted hereunder~~ on which such documents are posted on Borrower's behalf on an internet or intranet website, if any, to which Bank has access (whether a commercial or third party website or whether sponsored by Bank); provided that (A) Borrower shall deliver paper copies of such documents to Bank if Bank so requests and (B) Borrower shall notify Bank (by telecopier or electronic mail) of the ~~extent it is not practicable to include any~~ posting of such ~~adjustments in such financial statements~~documents.

Appears in 1 contract

Sources: Credit Agreement (American Woodmark Corp)

Financial Statements and Other Reports. ~~Deliver~~ (a) From and after the Closing Date, Azul shall furnish to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the followingTrustee: (1i) ~~within ninety (90) days after the end of each fiscal year~~ an English language version of the ~~Borrower, commencing with the fiscal year ending December 31, 2024, a~~ Parent Guarantor’s annual audited consolidated ~~balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated~~ financial statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with ~~GAAP, audited and accompanied by a report and opinion~~ IFRS promptly upon such financial statements becoming available but not later than 120 days after the close of its fiscal year; (ii) an ~~independent registered public accounting firm~~ English language version of ~~nationally recognized standing or another accounting firm reasonably acceptable to~~ the ~~Administrative Agent, which report and opinion (a) will be~~ Parent Guarantor’s unaudited interim condensed consolidated financial statements prepared in accordance with ~~generally accepted auditing standards and~~ IFRS promptly upon such statements becoming available but not later than 60 days after the close of each fiscal quarter (~~b) will not be subject to any qualification as to~~ other than the ~~scope~~ last fiscal quarter of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenantits fiscal year); (2iii) ~~within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30~~without duplication, ~~2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end~~ English language versions or summaries of such ~~fiscal quarter,~~ other reports or notices as may be filed or submitted by (and promptly after filing or submission by) the ~~related~~ Guarantors with (a) ~~consolidated statement of operations for such fiscal quarter and for~~ the ~~portion of the fiscal year then ended and~~ CVM or (b) ~~consolidated statement of cash flows for~~ the ~~portion of the fiscal year then ended, setting forth, in each case of the preceding clauses~~ SEC (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent ~~prepared by management~~ that any such report or notice is generally available to security holders of the ~~Borrower and included~~ Parent Guarantor or the public in ~~such consolidated budget~~Brazil or elsewhere and, in the case of clause (b), ~~which projected financial statements~~ is filed or submitted pursuant to Rule 12g3-2(b) under, or Section 13 or 15(d) of, the Exchange Act, or otherwise); (iv) within 90 days after the end of the fiscal year, a certificate of a Responsible Officer of the Parent Guarantor certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (v) no later than 45 days after the end of each Quarterly Reporting Period (or, in respect of the last Quarterly Reporting Period of its fiscal year, 60 days), a certificate of a Responsible Officer of the Parent Guarantor, certifying the Liquidity as of the last day of such Quarterly Reporting Period; (vi) on each (a) Allocation Date, an Allocation Date Statement and (b) no later than ten Business Days following the start of each Quarterly Reporting Period, a Quarterly Freeflow Threshold Statement, in each case to the Trustee and the U.S. Collateral Agent and the Brazilian Collateral Agent. The Trustee may, prior to the related Distribution Date, provide notice to the Issuer and the U.S. Collateral Agent and the Brazilian Collateral Agent of any information contained in the Allocation Date Statement that the Trustee believes to be incorrect. If the Trustee provides such a notice, the Issuer shall ~~be prepared in good faith~~ use its reasonable efforts to resolve the discrepancy and provide an updated Allocation Date Statement on or prior to the related Distribution Date. If the discrepancy is not resolved and a replacement Allocation Date Statement is not received by the Trustee prior to the payment of available funds on the ~~basis~~ related Distribution Date pursuant to the provisions of ~~assumptions believed~~ the Payment Waterfalls and it is later determined that the information identified by the Trustee as incorrect was in fact incorrect and such error resulted in a party receiving a smaller distribution on the Distribution Date than they would have received had there not been such an error, then the Issuer shall indemnify such party for such shortfall. For the avoidance of doubt and, notwithstanding anything to ~~be reasonable at~~ the ~~time~~ contrary in this Indenture or in any Shared Collateral Document, the Trustee shall have no obligation to inquire into, investigate, verify or perform any calculations in connection with an Allocation Date Statement or notice from the Trustee in respect of ~~preparation of such projected financial statements (~~the same; it being understood and agreed that the Trustee shall be entitled to conclusively rely, and shall not be liable for so relying, on the Allocation Date Statement last received by it on or prior to each Distribution Date and the Trustee shall have no obligation, responsibility or liability in connection with any ~~such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control~~ indemnification payment of the ~~Loan Parties~~ Issuer pursuant to the immediately preceding sentence; (vii) as soon as possible, and in any event within 15 Business Days after the Chief Financial Officer or the Treasurer of Azul becoming aware of the occurrence of a Default or an Event of Default that ~~no assurance can be given that any particular projections will be realized~~is continuing, ~~that actual results may differ~~ an Officer’s Certificate specifying such Default or Event of Default and ~~that such differences may be material)~~what action the Parent Guarantor and its Subsidiaries are taking or propose to take with respect thereto; and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (iiviii) any ~~anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements~~ other reports required to be delivered pursuant to ~~Sections 6.01(1~~the requirements of the Intercreditor Agreement at the same time such reports are delivered as required thereunder. (b) In no event shall the Trustee be entitled to inspect, receive and make copies of materials (except in connection with any enforcement or exercise of remedies in the case of clause (A)) (A) that constitute non-registered Intellectual Property, Azul Fidelidade Customer Data, Azul Traveler Data, Azul Cargo Customer Data or non-financial proprietary information, (B) in respect of which disclosure to the Trustee, any Collateral Agent or any Holder (or their respective representatives or contractors) is prohibited by law or any binding agreement (or would otherwise cause a breach or default thereunder) or ~~6.01(2~~(C) that are subject to attorney client or similar privilege or constitute attorney work product. (c) The requirement for the Parent Guarantor to deliver to the Trustee the information or reports referred to in clauses (i) through (iii) above shall be deemed satisfied if such information or report has been filed with the SEC through the Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system (or any successor method of filing) or if such information or report is made available on the Parent Guarantor’s website (and the Parent Guarantor shall provide the relevant URL to the Trustee upon request). (d) The requirement for the Parent Guarantor to deliver to the Trustee the information, reports or certificates referred to in clauses (iv) through (viii) above shall be deemed satisfied if, at its option, the Parent Guarantor (A) files such information, reports or certificates with the SEC through the Electronic Data Gathering Analysis and Retrieval (▇▇▇▇▇) system (or any successor method of filing) or if such information report is made available on the Parent Guarantor’s website (and the Parent Guarantor shall provide the relevant URL to the Trustee upon request), and (B) provides written notice to the Trustee that such information, reports or certificates have been so filed or made available. (e) In addition, any information required to be delivered pursuant to this Indenture to the Trustee pursuant to clauses (i) through (viii) above may, at the option of the Parent Guarantor, be made available by the Trustee to the Holders by posting such information on the Parent Guarantor’s website at a website address to be notified to the Holders from time to time. (f) The Trustee shall have no responsibility to determine if and when any information, reports or certificates have been made available online. Delivery of reports, information and documents to the Trustee is for informational purposes only and its receipt of such reports, information and documents shall not ~~be required to contain all purchase accounting adjustments relating to~~ constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance by the ~~Transactions~~ Issuer, Guarantor or any other ~~transaction(s) permitted hereunder~~ Person with any of its covenants under this Indenture or the New First Out Notes (as to which the ~~extent it~~ Trustee is ~~not practicable~~ entitled to ~~include~~ rely exclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the content, filing or timeliness of any ~~such adjustments~~ report or other information delivered, filed or posted under or in ~~such financial statements~~connection with this Indenture, the other Transaction Documents or the transactions contemplated thereunder. The Trustee has no duty to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to matters disclosed in any reports or other documents filed with the SEC or ▇▇▇▇▇ or any website under this Indenture.

Appears in 1 contract

Sources: Indenture (Azul Sa)

Financial Statements and Other Reports. ~~Deliver~~ Subject to SECTION 4.06, the Company covenants that, from and after the Closing Date, it will deliver to each Purchaser: (a) as soon as practicable and in any event no later than the day that a Form 10-Q is required to be filed by the Company with the SEC following each quarterly period (other than the last quarterly period) in each fiscal year, consolidated statements of operations, statements of stockholders' equity and cash flows of the Company for the period from the beginning of the then current fiscal year to the ~~Administrative Agent~~ end of such quarterly period, and a consolidated balance sheet of the Company as of the end of such quarterly period setting forth in each case in comparative form figures for ~~prompt further distribution by~~ the ~~Administrative Agent~~ corresponding period or date in the preceding fiscal year, together with a certificate from a senior officer of the Company to ~~each Lender~~ the effect that such financial statements have been prepared in accordance with GAAP consistently applied during the periods involved (subject to year-end adjustments) and that such financial statements fairly present the ~~limitations on distribution~~ results of ~~any such information to Public Lenders as described~~ operations and changes in ~~Section 6.02) each~~ financial position, stockholders' equity, cash flows and financial position of the ~~following:~~Company and the Company Subsidiaries as of and for the period then ended (such certificate, the "SENIOR OFFICER'S CERTIFICATE"); provided, however, that delivery pursuant to SECTION 4.03(c) of a copy of the Company's periodic report on Form 10-Q or such period filed with the SEC shall be deemed to satisfy the requirements of this SECTION 4.03(a); (1b) ~~within ninety (90) days after~~ as soon as practicable and in any event no later than the day that a Form 10-K is required to be filed by the Company with the SEC following the end of each fiscal ~~year of the Borrower, commencing with the fiscal year ending December 31, 2024~~year, a consolidated balance sheet of the ~~Borrower and its Subsidiaries~~ Company as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ operations, statements of stockholders' equity and cash flows for such fiscal year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the corresponding figures ~~for~~ from the ~~previous~~ preceding fiscal year, ~~in reasonable detail and all prepared in accordance~~ together with ~~GAAP, audited and accompanied by a~~ the audit report ~~and opinion~~ of an PricewaterhouseCoopers LLP or other independent ~~registered~~ public ~~accounting firm~~ accountants of ~~nationally~~ recognized standing ~~or another accounting firm reasonably acceptable~~ selected by the Company; provided, however, that delivery pursuant to ~~the Administrative Agent, which report and opinion (a~~SECTION 4.03(c) ~~will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope~~ below of ~~such audit (but may contain~~ a ~~“going concern” or like qualification that is due to (i) the impending maturity~~ copy of the ~~Facilities, (ii) any anticipated inability~~ Annual Report on Form 10-K of the Company for such fiscal year filed with the SEC shall be deemed to satisfy the ~~Financial Covenant or (iii) except in the case~~ requirements of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be materialthis SECTION 4.03(b); and (4c) ~~[reserved]. Further~~promptly upon transmission thereof, ~~the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results~~ copies of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of all such financial statements~~. Such live quarterly conference calls will review business performance~~ , proxy statements, notices and ~~key performance indicators~~ reports as it shall send to its stockholders and ~~will include question-and-answer sessions for public-side~~ copies of all such registration statements, other than registration statements relating to employee benefit or dividend reinvestment plans, and ~~private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1)~~ all such regular and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form periodic reports on Forms 10-~~K or~~ K, 10-Q, Q and 8-K (or similar or substitute forms) as ~~applicable, filed~~ it shall file with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsSEC.

Appears in 1 contract

Sources: Preferred Stock and Warrant Purchase Agreement (R H Donnelley Corp)

Appears in 1 contract

Sources: Credit and Security Agreement (WMF Group LTD)

Financial Statements and Other Reports. ~~Deliver~~ Furnish to the ~~Administrative~~ Agent ~~for prompt further distribution by~~ and -------------------------------------- the ~~Administrative Agent to each Lender~~ Banks (~~subject to the limitations on distribution of~~ a) as soon as available and in any ~~such information to Public Lenders as described in Section 6.02) each of the following: (1)~~ event within ~~ninety (90)~~ 100 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with the fiscal year ending December 31, 2024, a~~ audited consolidated ~~balance sheet~~ financial statements of the ~~Borrower~~ Company and ~~its~~ the Subsidiaries ~~as at the end~~ consisting of a statement of income and reconciliation of capital accounts of such ~~fiscal~~ year and related balance sheets as of year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower-end, setting forth in each case in comparative form the corresponding figures for the ~~previous fiscal~~ preceding year, ~~in reasonable detail and all~~ prepared in ~~accordance~~ conformity with GAAP, ~~audited and accompanied~~ applied on a basis consistent with that of the preceding year, certified, without qualification, by ~~a report and opinion of an independent registered public~~ the accounting firm of ~~nationally recognized standing~~ Ernst & Young LLP or ~~another accounting firm~~ by any other independent certified public accountants reasonably ~~acceptable~~ satisfactory to the ~~Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and~~ Banks; (b) ~~will not be subject to~~ as soon as available and in any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) event within ~~forty-five (45)~~ 30 days after the end of each monthly accounting period of the ~~first three (3) fiscal quarters of each fiscal year~~ Company, a copy of the ~~Borrower commencing with September 30, 2024, a consolidated balance sheet~~ unaudited financial statements of the ~~Borrower~~ Company and ~~its~~ the Subsidiaries as at of the end of each such ~~fiscal quarter~~period, prepared in conformity with GAAP (but without footnotes and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end ~~adjustments~~ adjustments) consisting of a balance sheet and a statement of income and surplus for the ~~absence of footnotes, together with management’s discussion and analysis describing results of operations in~~ period from the ~~form customarily prepared by management~~ beginning of the ~~Borrower;~~ current fiscal year to the end of such accounting period, certified by the chief financial officer or chief accounting officer of the Company on behalf of the Company; (3c) as soon as available and in any event within ~~ninety (90)~~ 100 days after the end of each fiscal year of the ~~Borrower~~Parent, ~~commencing with respect~~ a copy of the audited consolidated financial statement of the Parent and its consolidated subsidiaries, including the opinion of the accounting firm of Ernst & Young LLP or of any other independent certified public accountants reasonably satisfactory to the Banks, and a copy of the 10-K report filed by the Parent with the Securities and Exchange Commission for such fiscal year; (d) as soon as available and in any event within 60 days after the close of each quarterly accounting period in each fiscal year ~~ending December 31, 2024~~of the Parent, a ~~consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ copy of the ~~Borrower~~ 10-Q report filed by the Parent with the Securities and Exchange Commission for ~~its internal use~~ such quarter; (~~including~~ e) as soon as available and in any ~~projected consolidated balance sheet~~ event within 20 days after the end of each month, a certificate in the form of Schedule 4.01(e) hereto ("Borrowing Base/Compliance Certificate"), prepared as of the ~~Borrower~~ last Business Day of such month; (f) as soon as available and ~~its Subsidiaries~~ in any event within 30 days after the end of each calendar month a servicing/delinquency report prepared as of the end of ~~the following fiscal year~~ such month and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied showing with respect to ~~financial information~~ the Servicing Portfolio: the number of Mortgage Loans (including Mortgage Loans subject to Mortgage-backed Securities) included therein, the ~~Borrower~~ total principal amount thereof, Investor type, geographic concentration, weighted average coupon, weighted average maturity, weighted average servicing fee, delinquency status and ~~its Subsidiaries by furnishing~~ foreclosure experience; (Ag) within five Business Days after the ~~applicable financial statements~~ end of ~~any Parent Company~~ each calendar month, an Inventory/Pipeline Report satisfactory to the Required Banks; (h) promptly upon their becoming available, copies of all audit reports prepared for FNMA, GNMA or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that FHLMC with respect to ~~each~~ the Company or any subservicer of the ~~preceding clauses~~ Company; (Ai) ~~and~~ as promptly as practicable (B)but in any event not later than five Business Days) after the President, ~~(1) to~~ Vice President-Finance or Treasurer of the ~~extent~~ Company obtains actual knowledge of the occurrence of any Event of Default or Unmatured Event of Default, notice of such ~~information relates to~~ occurrence, together with a ~~Parent~~ detailed statement by an officer of the Company on behalf of the Company of the ~~Borrower~~steps being taken by the Company to cure the Event of Default or Unmatured Event of Default; and (j) from time to time, ~~if and so long as such Parent Company will have Independent Assets or Operations~~with reasonable promptness, such further information ~~is accompanied by consolidating information (which need not be audited) that explains in reasonable detail~~ regarding the ~~differences between the information relating to such Parent Company~~ business, affairs and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option financial condition of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to Company as the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions Agent or any ~~other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~Bank may reasonably request.

Appears in 1 contract

Sources: Warehousing Credit Agreement (MDC Holdings Inc)

Financial Statements and Other Reports. ~~Deliver~~ Furnish to the ~~Administrative~~ -------------------------------------- Agent ~~for prompt further distribution by~~ and the ~~Administrative Agent to each Lender~~ Banks (~~subject to the limitations on distribution of~~ a) as soon as available and in any ~~such information to Public Lenders as described in Section 6.02) each of the following: (1)~~ event within ~~ninety (90)~~ 100 days after the end of each fiscal year of the ~~Borrower~~Company, ~~commencing with the fiscal year ending December 31, 2024, a~~ audited consolidated ~~balance sheet~~ financial statements of the ~~Borrower~~ Company and ~~its~~ the Subsidiaries ~~as at the end~~ consisting of a statement of income and reconciliation of capital accounts of such ~~fiscal~~ year and related balance sheets as of year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower-end, setting forth in each case in comparative form the corresponding figures for the ~~previous fiscal~~ preceding year, ~~in reasonable detail and all~~ prepared in ~~accordance~~ conformity with GAAP, ~~audited and accompanied~~ applied on a basis consistent with that of the preceding year, certified, without qualification, by ~~a report and opinion of an independent registered public~~ the accounting firm of ~~nationally recognized standing~~ Ernst & Young LLP or ~~another accounting firm~~ by any other independent certified public accountants reasonably ~~acceptable~~ satisfactory to the ~~Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and~~ Banks; (b) ~~will not be subject to~~ as soon as available and in any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) event within ~~forty-five (45)~~ 30 days after the end of each monthly accounting period of the ~~first three (3) fiscal quarters of each fiscal year~~ Company, a copy of the ~~Borrower commencing with September 30, 2024, a consolidated balance sheet~~ unaudited financial statements of the ~~Borrower~~ Company and ~~its~~ the Subsidiaries as at of the end of each such ~~fiscal quarter~~period, prepared in conformity with GAAP (but without footnotes and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end ~~adjustments~~ adjustments) consisting of a balance sheet and a statement of income and surplus for the ~~absence of footnotes, together with management’s discussion and analysis describing results of operations in~~ period from the ~~form customarily prepared by management~~ beginning of the ~~Borrower;~~ current fiscal year to the end of such accounting period, certified by the chief financial officer or chief accounting officer of the Company on behalf of the Company; (3c) as soon as available and in any event within ~~ninety (90)~~ 100 days after the end of each fiscal year of the ~~Borrower~~Parent, ~~commencing with respect~~ a copy of the audited consolidated financial statement of the Parent and its consolidated subsidiaries, including the opinion of the accounting firm of Ernst & Young LLP or of any other independent certified public accountants reasonably satisfactory to the Banks, and a copy of the 10-K report filed by the Parent with the Securities and Exchange Commission for such fiscal year; (d) as soon as available and in any event within 60 days after the close of each quarterly accounting period in each fiscal year ~~ending December 31, 2024~~of the Parent, a ~~consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management~~ copy of the ~~Borrower~~ 10-Q report filed by the Parent with the Securities and Exchange Commission for ~~its internal use~~ such quarter; (~~including~~ e) as soon as available and in any ~~projected consolidated balance sheet~~ event within 20 days after the end of each month, a certificate in the form of Schedule 4.01(e) hereto ("Borrowing Base/Compliance Certificate"), prepared as of the ~~Borrower~~ last Business Day of such month; (f) as soon as available and ~~its Subsidiaries~~ in any event within 30 days after the end of each calendar month a servicing/delinquency report prepared as of the end of ~~the following fiscal year~~ such month and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied showing with respect to ~~financial information~~ the Servicing Portfolio: the number of Mortgage Loans (including Mortgage Loans subject to Mortgage-backed Securities) included therein, the ~~Borrower~~ total principal amount thereof, Investor type, geographic concentration, weighted average coupon, weighted average maturity, weighted average servicing fee, delinquency status and ~~its Subsidiaries by furnishing~~ foreclosure experience; (Ag) within five Business Days after the ~~applicable financial statements~~ end of ~~any Parent Company~~ each calendar month, an Inventory/Pipeline Report satisfactory to the Required Banks; (h) promptly upon their becoming available, copies of all audit reports prepared for FNMA, GNMA or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that FHLMC with respect to ~~each~~ the Company or any subservicer of the ~~preceding clauses~~ Company; (Ai) ~~and~~ as promptly as practicable (B)but in any event not later than five Business Days) after the President, ~~(1) to~~ Vice President-Finance or Treasurer of the ~~extent~~ Company obtains actual knowledge of the occurrence of any Event of Default or Unmatured Event of Default, notice of such ~~information relates to~~ occurrence, together with a ~~Parent~~ detailed statement by an officer of the Company on behalf of the Company of the ~~Borrower~~steps being taken by the Company to cure the Event of Default or Unmatured Event of Default; and (j) from time to time, ~~if and so long as such Parent Company will have Independent Assets or Operations~~with reasonable promptness, such further information ~~is accompanied by consolidating information (which need not be audited) that explains in reasonable detail~~ regarding the ~~differences between the information relating to such Parent Company~~ business, affairs and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option financial condition of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to Company as the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions Agent or any ~~other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements~~Bank may reasonably request.

Appears in 1 contract

Sources: Warehousing Credit Agreement (MDC Holdings Inc)

Financial Statements and Other Reports. ~~Deliver~~ The Borrower Representative shall deliver to ~~the Administrative Agent for prompt further distribution by the Administrative Agent to~~ Agent, on behalf of itself and each ~~Lender (subject to the limitations on distribution of any such information to Public Lenders as described in Section 6.02) each of the following~~other Credit Party: (1a) ~~within ninety~~ as soon as available, but no later than thirty (9030) days after the ~~end~~ last day of each ~~fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2024~~month, a company prepared consolidated balance ~~sheet of~~ sheet, cash flow and income statement (including year-to-date results) covering the Borrower Representative’s and its ~~Subsidiaries~~ Consolidated Subsidiaries’ consolidated operations during the period, prepared under GAAP, consistently applied, setting forth in comparative form the corresponding figures as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower, setting forth in each case in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding ~~fiscal quarter~~ month of the previous fiscal year and the ~~corresponding portion~~ projected figures for such period based upon the projections required hereunder, all in reasonable detail, certified by a Responsible Officer and in a form acceptable to Agent; provided that solely for the period commencing as of the ~~previous fiscal year~~Closing Date through and including December 31, ~~accompanied by an Officer’s Certificate stating that such financial~~ 2025, the cash flow statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrowermay be delivered quarterly; (3b) ~~within ninety~~ together with the financial reporting package described in (90a) above, evidence of payment and satisfaction of all payroll, withholding and similar taxes due and owing by the Credit Parties with respect to the payroll period(s) occurring during such month; (c) (x) prior to any initial public offering with respect to B▇▇▇▇▇▇▇’s equity interests as soon as available, but no later than one hundred twenty (120) days after the ~~end~~ last day of B▇▇▇▇▇▇▇’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Agent in its reasonable discretion (except for a qualification solely related to a going concern or with respect to any Debt which matures within twelve months from the time such opinion is delivered) or (y) following any such initial public offering, within fifteen (15) days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Public Reporting Entity for such fiscal year containing the information that would have been required to be contained in an annual report on Form 10-K (or any successor or comparable form) if the Public Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; (d) within five (5) days of delivery or filing thereof, copies of all statements, reports and notices made available to the Borrower Representative’s security holders or to any holders of Subordinated Debt and copies of all reports and other filings made by a Credit Party with any stock exchange on which any securities of any Credit Party are traded and/or the SEC; (e) a prompt written notice of any legal actions pending against any Credit Party or any Subsidiaries thereof that could reasonably be expected to result in damages or costs to any Credit Party or any of Subsidiaries thereof equal to or in excess of $10,000,000 or may be reasonably expected to result in a Material Adverse Effect; (f) prompt written notice of an event that materially and adversely affects the value of any material Intellectual Property owned by a Credit Party; (g) promptly after the same become available, copies of any amendments, waivers or other modifications of or relating to the Term Loan Facility; (h) budgets, sales projections, operating plans and other financial information and information, reports or statements regarding the Credit Parties, their business and the Collateral as Agent may from time to time reasonably request; (i) along with the monthly reports delivered pursuant to Section 4.1(a) above, evidence reasonably satisfactory to Agent of each Credit Party’s compliance with any payment plan or arrangement with any taxing authority with respect to Priority Tax Claims (as defined in the Plan of Reorganization), including copies of payment confirmations, material correspondence with taxing authorities and a schedule of outstanding Priority Tax Claims; (j) as soon as available, but no later than five (5) days after the last day of each fiscal ~~year~~ quarter, an updated Schedule 1.1 identifying the credit ratings of Investment Grade Account Debtors used in determination of Eligible Investment Grade Billed Accounts, in form and substance reasonably satisfactory to Agent; (k) within thirty (30) days after the ~~Borrower~~last day of each month, ~~commencing~~ together with ~~respect to~~ the ~~fiscal year ending December 31, 2024~~monthly financial statements described in clause (a) above, a ~~consolidated budget for~~ duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the ~~following fiscal year on a quarterly basis as customarily prepared by management~~ financial covenants set forth in this Agreement; (l) promptly upon their becoming available, copies of ~~the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower~~ all Swap Contracts and ~~its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income~~Material Contracts, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed case that are required to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material)publicly filed; and (4m) ~~[reserved]~~within twenty (20) days after the last day of each month, a duly completed Borrowing Base Certificate signed by a Responsible Officer, with aged listings of accounts receivable and accounts payable (by invoice date); provided that Borrower shall deliver such Borrowing Base Certificates as soon as available, but in any event no later than the second (2nd) Business Day of each week, in arrears, following the occurrence and during the continuance of a Cash Dominion Period; and provided, further, that Borrower shall deliver a new “roll-forward” Borrowing Base Certificate as required pursuant to Exhibit D (or, at Borrower’s option, a complete Borrowing Base Certificate) concurrently with any Notice of Borrowing. ~~Further~~At the option of the Borrowers, the ~~Borrower shall conduct live quarterly conference calls that~~ Borrowers may make available to Agent and such requesting Lenders the ~~Lenders may attend~~ information required to ~~discuss~~ be provided pursuant to clause (c) of the ~~financial condition and results~~ immediately preceding paragraph by posting such information to its website (or the website of ~~operations~~ any of the Borrower Representative’s parent companies, including the Public Reporting Entity) on IntraLinks or any comparable online data system or website to which each Lender and ~~its Subsidiaries for~~ Agent have access; provided, that the ~~most recently ended measurement period for~~ Borrower Representative shall notify (which ~~financial statements have been delivered pursuant~~ may be by electronic mail) Agent of the posting of any such documents and provide to ~~Section 6.01(1~~Agent by electronic mail electronic versions (i.e., soft copies) ~~and Section 6.01(2),~~ of such documents. If at any time the Borrowers or any direct or indirect parent of the Borrowers has made a ~~date and time~~ good faith determination to ~~be determined by Borrower in consultation~~ file a registration statement with the ~~Administrative Agent after delivery~~ SEC with respect to an initial public offering of such ~~financial statements. Such live quarterly conference calls~~ entity’s equity interests, the Borrowers will ~~review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders~~not be required to disclose any information or take any actions that, in the good faith view of the Borrowers would violate the securities laws or the SEC’s “gun jumping” rules. Notwithstanding the foregoing, (A) neither the ~~obligations referred~~ Credit Parties nor another Public Reporting Entity will be required to ~~in Sections 6.01(1~~deliver any information, certificates or reports that would otherwise be required by (i) ~~and 6.01(2~~Section 302 or Section 404 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) ~~may be satisfied~~ Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3- 09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, Form 10-Q or Form 8-K (or any successor or comparable forms) or related rules under Regulation S-K and (C) such reports shall not be required to present compensation or beneficial ownership information. The financial statements, information and other documents required to be provided as described in clause (c) of the first paragraph of this Section 4.1 may be those of (i) the Borrower Representative and its Subsidiaries ~~by furnishing~~ (Aon a combined basis) ~~the applicable financial statements of any Parent Company~~ or (Bii) any direct or indirect parent of all of the ~~Borrower’s or~~ Credit Parties (any such ~~Parent Company’s Form 10-K or 10-Q~~entity, ~~as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01~~a “Public Reporting Entity”); ~~provided that with respect~~ provided, that, if the financial information so delivered relates to ~~each~~ such direct or indirect parent of the ~~preceding clauses (A) and (B), (1) to~~ Credit Parties the ~~extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information~~ same is accompanied by consolidating ~~information~~ financial statements (~~which need not be audited~~including statements of cash flows) that ~~explains~~ explain in reasonable detail the differences between the information relating to such ~~Parent Company and its Independent Assets or Operations~~parent, on the one hand, and the information relating to the Borrower Representative and ~~the consolidated~~ its Subsidiaries on a ~~stand-alone~~ standalone basis, on the other ~~hand and (2)~~ hand, for the applicable period. Notwithstanding any of the foregoing herein, to the extent any of the Credit Parties’ parent companies is subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act, such information is described in ~~lieu~~ this paragraph shall be included in the Form 10-K reports of the Public Reporting Entity described in clause (c) of the first paragraph of this Section 4.1 filed with the SEC. Notwithstanding the foregoing, the Credit Parties will be deemed to have delivered such reports and information referred to in this Section 4.1 to the Lenders and Agent for all purposes of this Agreement if the Credit Parties or another Public Reporting Entity has filed such reports with the SEC via the E▇▇▇▇ filing system (or any successor system), and such reports are publicly available. In addition, except as required by the last sentence of the immediately preceding paragraph, the requirements of this Section 4.1 shall be deemed satisfied and the Credit Parties will be deemed to have delivered such reports and information referred to this Section 4.1 to Agent, holders, prospective investors, market makers and securities analysts for all purposes of this Agreement by the posting of reports and information that would be required to be provided ~~under Section 6.01(1~~on the Borrower’s website (or that of any of the Credit Parties’ parent companies, including the Public Reporting Entity). Agent shall have no obligation to monitor whether the Credit Parties post such reports, information and documents on the Borrower’s website (or that of any of the Credit Parties’ parent companies, including the Public Reporting Entity) ~~(it being understood that~~ or the SEC’s E▇▇▇▇ service, or collect or re-post any such information ~~may be audited at the option~~ from any Credit Party (or any of the ~~Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing~~ Credit Parties’ parent companies) website or ~~another accounting firm reasonably acceptable to~~ the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statementsSEC’s E▇▇▇▇ service.

Appears in 1 contract

Sources: Credit and Security Agreement (XBP Global Holdings, Inc.)

Financial Statements and Other Reports. ~~Deliver~~ For so long as Purchaser or the Permitted Transferees own any shares of Common Stock, the Company covenants that it will deliver to Purchaser or the ~~Administrative Agent for prompt further distribution by~~ Permitted Transferees, as the ~~Administrative Agent to each Lender~~ case may be: (a) in the event the Company is not at such time subject to the ~~limitations on distribution of any such information to Public Lenders as described in Section 6.02) each~~ reporting requirements of the ~~following:~~Exchange Act, as soon as practicable and in any event within 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, consolidated statements of operations, statements of shareholders' equity and cash flows of the Company for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company at the end of such quarterly period setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, together with a certificate from a senior officer of the Company ("Senior Officer's Certificate") to the effect that such financial statements have been prepared in accordance with GAAP consistently applied during the periods involved (except as otherwise indicated in the notes thereto and subject to year-end adjustments) and that such financial statements fairly present the results of operations and changes in financial position, shareholders' equity, cash flows and financial position of the Company and the Company Subsidiaries as of and for the period then ended; (1b) in the event the Company is not at such time subject to the reporting requirements of the Exchange Act, as soon as practicable and in any event within ~~ninety (90)~~ 90 days after the end of each fiscal ~~year of the Borrower, commencing with the fiscal year ending December 31, 2024~~year, a consolidated balance sheet of the ~~Borrower and its Subsidiaries~~ Company as at of the end of such fiscal ~~year,~~ year and the related consolidated statements of ~~operations~~ operations, statements of shareholders' equity and cash flows for such fiscal year~~, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower~~, setting forth in each case in comparative form the corresponding figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant); (2) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower commencing with September 30, 2024, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of operations for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, accompanied by an Officer’s Certificate stating that such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes, together with management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Borrower; (3) within ninety (90) days after the end of each fiscal year of the Borrower, commencing with respect to the fiscal year ending December 31, 2024, a consolidated budget for the following fiscal year on a quarterly basis as customarily prepared by management of the Borrower for its internal use (including any projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected income, in each case, to the extent prepared by management of the Borrower and included in such consolidated budget), which projected financial statements shall be prepared in good faith on the basis of assumptions believed to be reasonable at the time of preparation of such projected financial statements (it being understood that any such projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material); and (4) [reserved]. Further, the Borrower shall conduct live quarterly conference calls that the Lenders may attend to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Section 6.01(1) and Section 6.01(2), at a date and time to be determined by Borrower in consultation with the Administrative Agent after delivery of such financial statements. Such live quarterly conference calls will review business performance and key performance indicators and will include question-and-answer sessions for public-side and private-side Lenders. Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any Parent Company or (B) the Borrower’s or such Parent Company’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to each of the preceding clauses (A) and (B), (1) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent Company will have Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Subsidiaries on a stand-alone basis, on the other hand and (2) to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing standards and (b) will not be subject to any qualification as to the scope of such audit (but may contain a “going concern” or like qualification that is due to (i) the impending maturity of the Facilities, (ii) any anticipated inability to satisfy the Financial Covenant or (iii) except in the case of the Revolving Facility, an actual Default of the Financial Covenant). Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.from the

Appears in 1 contract

Sources: Stock Purchase Agreement (American Bank Note Holographics Inc)

Common use of Financial Statements and Other Reports Clause in Contracts