Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Agent, Canadian Agent and the Lenders: (a) as soon as practicable, but in any event not later than ninety-five (95) days after the end of each fiscal year of Zale, (i) the consolidated balance sheet of Zale and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt; (b) as soon as practicable, but in any event not later than fifty (50) days after the end of each of the first three fiscal quarters of each fiscal year of Zale, (i) copies of the unaudited consolidated balance sheet of Zale and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes), (ii) a certification by a Senior Officer of each of the Borrowers that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission; (i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date; (d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively); (e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such yearflow, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified certified, without qualification and without an expression of uncertainty as to the ability of the Borrower or any of its Subsidiaries to continue as going concerns, by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower, (i) copies of the unaudited consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zalethe Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower in substantially the form of Exhibit D EXHIBIT C hereto (a "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) 10 and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet Date;
(d) within ten (10) Business Days after contemporaneously with the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively)Borrower;
(e) from time to time upon request of the Administrative Agent, projections of the Borrower and its Subsidiaries updating those projections delivered to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements Lenders and referred to in subsections Section 7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 8.4(e); and
(af) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and from time to time such other financial data and information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Administrative Agent shall request in the exercise of its reasonable discretion;or any Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Agent (and the Agent will promptly, after receipt thereof, deliver to the Lenders:):
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower, (i) copies of the unaudited consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zalethe Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the chief financial officer or the treasurer of the Borrowers Borrower that to the best of the Borrower's knowledge, the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each the chief financial officer or the treasurer of the Borrowers Borrower in substantially the form of Exhibit EXHIBIT D attached hereto (a "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to section 7 hereof, a calculation of the financial information required by Section 7.14 in connection with possible Performance Adjustments) Obligor Group Requirement and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet Date;
(d) within ten from time to time such other financial data and information as the Agent or any Lender may reasonably request; and
(10i) Business Days after promptly upon becoming aware of the filing occurrence of any actual or mailing claimed "EVENT OF TERMINATION" under and as defined in any of the documents relating to the Securitization, notice thereof, copies which notice shall describe such Event of all material reports of a financial nature filed by Termination and indicate what steps the Borrowers with Borrower and its Subsidiaries are taking to remedy the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) same and (b)ii) promptly upon request therefor, respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents Securitization as the Agent shall request reasonably request. All Confidential Information concerning the Borrower supplied by the Borrower to the Lenders pursuant to the terms hereof will be held in confidence by the exercise Lenders and the Lenders shall not disclose such Confidential Information except as permitted by section 23 of its reasonable discretion;this Credit Agreement.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each the Agents and any Lender upon request of such Lender (made through the Agent, Canadian Agent and the Lenders:Agents):
(a) within five (5) days after the filing with the Securities and Exchange Commission of the Borrower’s Annual Report on Form 10-K (or such similar report to be filed for a “foreign private issuer” as soon as practicable, but defined by applicable Securities Laws) with respect to each fiscal year (and in any event not later than ninety-five within one hundred (95100) days after the end of each such fiscal year of Zaleyear), (i) the consolidated balance sheet sheets of Zale and its Subsidiaries the Consolidated Group as at the end of such year, and the related consolidated statement statements of income and consolidated statement cash flows of cash flow for such yearthe Consolidated Group, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP and audited and accompanied by a report and opinion of the Accountants, which report and each of opinion shall state that such financial statements certified without present fairly the financial position of the Consolidated Group and shall not be subject to any qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ as to going concern or by other independent certified public accountants reasonably satisfactory to the Agent, and scope of the audit;
(iib) within five (5) days after the annual 10-K reports of Zale filed filing with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating Commission of the Rated Debt;
Borrower’s Quarterly Report on Form 10-Q (bor such similar report to be filed for a “foreign private issuer” as defined by applicable Securities Laws) as soon as practicable, but with respect to each of the first three (3) fiscal quarters of each fiscal year (and in any event not later than fifty (50) within 55 days after the end of each of the first three such fiscal quarters of each fiscal year of Zalequarter), (i) copies of the unaudited consolidated balance sheet sheets of Zale the Consolidated Group as at the end of such fiscal quarter, and its Subsidiaries the related consolidated statements of income and cash flows of the Consolidated Group as at the end of such quarter, subject to normal year-end adjustments and the related consolidated statement absence of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's fiscal year then elapsedfootnotes, all in reasonable detail and prepared in accordance with generally accepted accounting principles (GAAP subject to normal year-end adjustments and except for the absence of notes)footnotes, (ii) with a certification by a Senior Officer of each of the Borrowers CFO that the information contained in such management consolidated financial statements are prepared in accordance with GAAP and fairly presents present in all material respect respects the consolidated financial position condition of Zale and its Subsidiaries the Consolidated Group as at the close of business on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of and the operating results of the Borrowers and each of their divisions operations for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commissionthen ended;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement Compliance Certificate (i) certified by a Senior Officer of each the CFO that the Consolidated Group is in compliance with the covenants contained in Sections 7.14 as of the Borrowers in substantially end of the form of Exhibit D hereto and applicable period, setting forth in reasonable detail computations evidencing compliance with such compliance, (ii) attaching a summary of all intercompany Indebtedness incurred in connection with, or outstanding under, any Permitted Intercompany Financing and any material documents, instruments or notices executed and/or delivered in connection therewith and (iii) attaching, if applicable, an updated Schedule 1, Schedule 2 and Schedule 5.27 for all necessary amendments to such schedules; provided, that if the covenants contained Borrower shall at the time of issuance of such certificate or at any other time obtain knowledge of any Default or Event of Default, the Borrower shall include in Section 12 (such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and including calculations period of existence thereof and what action the Borrower propose to take with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Datethereto;
(d) within ten (10) Business Days after contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the U.S. Securities and Exchange Commission (or the Canadian equivalent thereof) or sent to the stockholders of Zale the Borrower; and
(e) from time to time, such other than financial data and other information (including accountants’ management letters and a copy of the Borrower’s annual 10-K budget and projections for any fiscal year) as the Lenders may reasonably request. The Borrower shall be deemed to have delivered reports and the quarterly 10-Q reports of Zale delivered pursuant other information referred to Sections 10.4(a) and in clauses (a), (b), respectively);
and (ed) of this Section 6.04 when (A) such reports or other information have been posted on the Internet website of the Securities and Exchange Commission (h▇▇▇://▇▇▇.▇▇▇.▇▇▇) (or, if applicable, the Canadian equivalent thereof) or on Borrower’s Internet website as previously identified to the Agent within thirty Agents and Lenders and (30B) days after the end Borrower has notified the Agents by electronic mail of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year such posting. Each of the Borrowers may Credit Parties hereby acknowledges that (a) the Agents and/or the Arrangers may, but shall not be delivered simultaneously with obligated to, make available to the delivery Lenders and the L/C Issuers materials and/or information provided by or on behalf of the financial statements referred to in subsections Borrower hereunder (acollectively, “Borrower Materials”) by posting the Borrower Materials on, IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements certain of the Receivables Facility Documents and such other Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the purchase Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and sale of ZFT Receivables pursuant who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agents , the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Receivables Facility Documents Borrower or their securities for purposes of United States Federal, Canadian Federal, provincial, territorial and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Agent Platform designated “Public Side Information;” and (z) the Agents and the Arrangers shall request in be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the exercise of its reasonable discretion;Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to m▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to each of be delivered to the Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five one hundred twenty (95120) days after the end of each fiscal year of Zalecalendar year, (i) the consolidated audited Consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement audited Consolidated statements of income income, changes in capital and consolidated statement of cash flow flows for such yearyear (in each instance presented in Dollars), each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each together with a certification by an Authorized Officer of Borrower that the information contained in such financial statements certified fairly presents in all material respects the financial position of the Consolidated Group, and accompanied by an auditor’s report prepared without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory as to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating scope of the Rated Debtaudit by KPMG or another nationally recognized accounting firm selected by Borrower and reasonably approved by Agent;
(b) as soon as practicable, but in any event not later than fifty sixty (5060) days after the end of each of the first three fiscal (3) calendar quarters of each fiscal year of Zaleyear, (i) copies of the unaudited consolidated Consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement unaudited Consolidated statements of income and cash flows for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's fiscal year then elapsedyear-to-date (in each instance presented in Dollars), all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to GAAP other than the absence of full footnotes and year-end adjustments and except for the absence of notes)adjustments, (ii) together with a certification by a Senior an Authorized Officer of each of the Borrowers Borrower that the information contained in such management financial statements fairly presents in all material respect respects the financial position of Zale and its Subsidiaries the Consolidated Group on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by a Senior an Authorized Officer of each of the Borrowers in substantially the form of Exhibit D hereto (or in such other form as the Agent may reasonably approve from time to time) stating that no Event of Default has occurred and is continuing and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 12 (§§3.2 and including calculations 9, setting forth reconciliations to reflect changes in GAAP since the Closing Date. The Compliance Certificate shall be accompanied by copies of the statements of Net Operating Income for such calendar quarter for each of the Pool Properties, prepared on a basis consistent with respect the statements furnished to the financial Agent prior to the date hereof and otherwise in form and detail reasonably satisfactory to the Agent, together with a certification by an Authorized Officer of each such Person that the information required by Section 7.14 contained in such statement fairly presents in all material respects Net Operating Income of the Pool Properties for such periods. The Compliance Certificate to be delivered in connection with possible Performance Adjustments) the financials as of September 30, 2018 shall be prepared on a pro forma basis assuming that the Loans were in effect as of such date and (if applicable) reconciliations to reflect material changes that Indebtedness of any Credit Party or any of its Subsidiaries that was paid off in generally accepted accounting principles since connection with the Balance Sheet Dateclosing of these Loans was not in effect;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above): (i) a Rent Roll for each of the Pool Properties, (ii) an operating statement for each of the monthly "Settlement Statements" Pool Properties for each such calendar quarter and year to date, and (iii) a copy of ZFT any material amendment to any such Material Commercial Lease entered into with respect to a Pool Property during such calendar quarter;
(the "Settlement Statement"e) for the immediately preceding fiscal quarter, prepared in accordance concurrently with the requirements date shareholders are presented such materials, copies (which may be delivered electronically, by email or otherwise) of all reports and notices reported to shareholders of the Receivables Facility Documents and such other Borrower as a group (which shall not include any financial or tax information with respect to such shareholders or members); provided that any item that is filed via Form 8K or otherwise publicly available through the purchase and sale of ZFT Receivables pursuant SEC shall be treated as being delivered to the Receivables Facility Documents as Agent;
(f) if requested by the Agent, within sixty (60) days after each year end, a budget for the Credit Parties and each Pool Property for the current calendar year;
(g) to the extent requested by Agent, evidence reasonably satisfactory to Agent shall of the timely payment of all real estate taxes for the Pool Properties; and
(h) from time to time upon the reasonable request of Agent such other financial data and information in the exercise possession of its reasonable discretion;the Credit Parties (including finalized auditors’ management letters, status of litigation or investigations against the Borrower and any settlement discussions relating thereto (unless the Borrower in good faith believes that such disclosure could result in a waiver or loss of attorney work product, attorney client or other applicable privilege), property inspection and environmental reports with respect to the Pool Properties and information as to zoning and other legal and regulatory changes affecting the Credit Parties, Rent Roll, statements of NOI, and other information relating to the Real Estate of the Consolidated Group).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers BGI will deliver to each of the Administrative Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Borrowers, (i) the consolidated balance sheet of Zale BGI and its Subsidiaries as at the end last day of such fiscal year, and the related consolidated statement of income and consolidated statement of cash flow for such fiscal year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP (except as required by a change in GAAP or as concurred to by the Accountants), and each of such financial statements certified certified, without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory and without an expression of uncertainty as to the Agentability of BGI or any of its Subsidiaries to continue as going concerns, and (ii) by the annual 10-K reports of Zale filed with the Securities and Exchange CommissionAccountants; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;DB3/ 204224713.6
(b) as soon as practicable, but in any event not later than fifty sixty (5060) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrowers, (i) copies of the unaudited consolidated balance sheet of Zale BGI and its Subsidiaries as at the end last day of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer the principal financial or accounting officer of each of the Borrowers BGI that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale BGI and its Subsidiaries on the date thereof (subject to the absence of footnotes and year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer the principal financial or accounting officer of each of the Borrowers BGI in substantially the form of Exhibit D C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) §10 and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet DateDecember 31, 2019;
(d) within ten (10) Business Days after contemporaneously with the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than any of the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively)Borrowers;
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year upon request of the Borrowers may be delivered simultaneously with the delivery of the Administrative Agent, BGI’s annual consolidated financial statements referred plan; and
(f) from time to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and time such other financial data and information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents (including accountants’ management letters) as the Administrative Agent shall request in the exercise of its reasonable discretion;may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Barnes Group Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Agent and the LendersBanks:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated and reviewed consolidating balance sheet sheets of Zale ▇▇▇▇▇▇▇▇ Group, Inc. and its Subsidiaries (including, without limitation, the Borrower and its Subsidiaries) as at the end of such year, and the related consolidated statement and reviewed consolidating statements of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance conformity with generally accepted accounting principles, and each of such financial statements certified without qualification accompanied by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or a review thereof (or, if requested at any time by other the Banks, an unqualified (except for non-material qualifications acceptable to the Banks) audit thereof) by independent certified public accountants reasonably satisfactory to the AgentBanks, and (ii) which statements shall be accompanied by annual projections submitted by the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating management of the Rated DebtBorrower in form and detail acceptable to the Banks;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalecalendar quarter, (i) copies of the unaudited consolidated and consolidating balance sheet sheets of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement and consolidating statements of income for such quarter and consolidated statements of cash flow for the portion of Zalethe Borrower's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's fiscal year then elapsedaging reports with respect to accounts receivable and accounts payable, all in reasonable detail and prepared in accordance conformity with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)principles, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to customary year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;
Appears in 1 contract
Sources: Revolving Credit and Deferred Payment Sales Agreement (Andersen Group Inc)
Financial Statements, Certificates and Information. The Borrowers Loan Parties will deliver to each of the Agent, Canadian Agent and the LendersLender:
(a) as soon as practicable, but in any event (i) not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Guarantor, (i) the consolidated balance sheet of Zale the Guarantor and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified certified, without qualification and without an expression of uncertainty as to the ability of the Guarantor or any of its Subsidiaries to continue as going concerns (other than any expression of uncertainty that is expressly solely with respect to, or expressly resulting solely from any potential inability to satisfy the financial covenant set forth in Section 6.08(a) of this Agreement on a future date or in a future period), by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ PricewaterhouseCoopers Ltd. or by any other independent certified public accountants reasonably satisfactory accountant engaged pursuant to the Agent, Section 5.03(c) and (ii) not later than one hundred and twenty (120) days after the annual 10-K reports end of Zale filed with each fiscal year of the Securities Company and Exchange Commission; the Master Fund, the statement of assets and (iii) a certification by a Senior Officer liabilities of Zale each of the Company and the Master Fund as at the end of such year, and the related statement of operations for such year, each setting forth in comparative form the rating of figures for the Rated Debtprevious fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and certified, without qualification;
(b) as soon as practicable, but in any event (i) not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Guarantor, (i) copies of the unaudited consolidated balance sheet of Zale the Guarantor and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Guarantor that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments), ; and (iiiii) a narrative discussion not later than sixty (60) days after the end of the operating results of the Borrowers and each of their divisions for the semiannual fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous yearCompany and the Master Fund, and copies of the Borrowers' liquidity unaudited statement of assets and capital resources liabilities of each of the Company and the Master Fund as at the end of such semiannual fiscal period and the related statement of operations for such semiannual fiscal period, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Company that the information contained in such financial statements fairly presents the financial position of each of the Company and the Master Fund on the date thereof (iv) the quarterly 10subject to year-Q reports of Zale filed with the Securities and Exchange Commissionend adjustments);
(ic) simultaneously with the delivery Within thirty (30) days of the management receipt of any audit committee report prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statementsLoan Party’s accountants, if there are any reportable events resulting in any discussion in the sections of such financial statements with report entitled “Errors or Irregularities”, “Illegal Acts” or “Misstatements Due to Fraud”, the Company will provide copies of such sections to the Lender;
(A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iid) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet DateCompliance Certificate;
(de) five days after the date filed with the relevant Governmental Authority for each of its fiscal years, but in any event within ten 125 days after the end of each fiscal year of any Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(10f) Business Days after contemporaneously with the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and SEC or the London Stock Exchange Commission or sent to the stockholders of Zale either Loan Party; and
(g) from time to time such other than financial data and information as the annual 10-K reports and the quarterly 10-Q reports of Zale Lender may reasonably request. Documents required to be delivered pursuant to Sections 10.4(a) and Section 5.04(a), (b), respectively);
) or (ef) (to the Agent within thirty (30extent any such documents are included in materials otherwise filed with the SEC or the London Stock Exchange) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with electronically and if so delivered, shall be deemed to have been delivered on the delivery date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (▇▇▇▇▇) or the National Storage Mechanism of the financial statements referred London Stock Exchange; or (ii) on which such documents are posted on a Loan Party’s behalf on an Internet or intranet website, if any, to in subsections which the Lender has access (awhether a commercial or third-party website); provided that: (A) upon written request by the Lender, the Company and the Guarantor shall deliver paper copies of such documents to the Lender until a written request to cease delivering paper copies is given by the Lender and (bB) above), the monthly "Settlement Statements" of ZFT Company and the Guarantor shall notify the Lender (the "Settlement Statement"by facsimile or electronic mail) for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents posting of any such documents and provide to Lender by electronic mail electronic versions (i.e., soft copies) of such other information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;documents.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five one hundred twenty (95120) days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated balance sheet of Zale (i) the Borrower and (ii) CLI and its Subsidiaries Subsidiaries, in each case, as at the end of such year, and the related consolidated and consolidating statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, audited and each of such financial statements certified certified, without qualification and without an expression of uncertainty as to the ability of the Borrower or CLI, as the case may be, to continue as going concerns, by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young, LLP or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than fifty sixty (5060) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower and CLI, (i) copies of the unaudited consolidated balance sheet of Zale (i) the Borrower and (ii) CLI and its Subsidiaries Subsidiaries, in each case as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrower’s or CLI’s, as the case may be, fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower or CLI, as the case may be, that the information contained in such management financial statements fairly presents in all material respect respects the financial position of Zale the Borrower or CLI and its Subsidiaries Subsidiaries, as the case may be, on the date thereof (subject to normal year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended adjustments made in accordance with GAAP and the year to date, as compared with the comparable period absence of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commissionfootnotes);
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower in substantially the form of Exhibit D hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (Consolidated Tangible Net Worth of CLI and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) its Subsidiaries and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet Date;
(d) within ten (10) Business Days after contemporaneously with the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers CLI or any of its Subsidiaries with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively)Commission;
(e) (i) on each Determination Date and (ii) within five (5) Business Days prior to the Agent within thirty (30) days after date of any removal or sale of any assets from the Borrowing Base, a Borrowing Base Report setting forth the Borrowing Base as at the end of each such calendar month, sale date or other date so requested by the Agent;
(f) together with the quarterly financials delivered pursuant to Section 8.4(b), a separate calculation of the Utilization Rate for the Eligible Containers as a group and a separate weighted average calculation of the per diem rate for the preceding fiscal quarter (except that the Settlement Statement for the last fiscal quarter of Eligible Containers as a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred group; and
(g) from time to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and time such other financial data and information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents (including accountants’ management letters) as the Agent shall request in the exercise of its reasonable discretion;or any Lender may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Seacastle Inc.)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Agent and the LendersLender:
(a) as soon as practicable, but in any event not later than ninety-five (95) days after the end of each fiscal year of Zale, the Borrower:
(i) the consolidated balance sheet of Zale and its Subsidiaries the Borrower, as at the end of such fiscal year, and ; and
(ii) the related consolidated statement of income and consolidated statement of cash flow flows of the Borrower for such fiscal year. Each of the balance sheets and statements delivered under this Section 6.2(a) shall (I) in the case of items (i) and (ii), each setting set forth in comparative form the figures as of the end of and for the previous fiscal year, all such consolidated statements to ; (II) be in reasonable detail, detail and prepared in accordance with generally accepted accounting principlesGAAP based on the records and books of account maintained as provided in Section 6.1; (III) include footnotes or otherwise be accompanied by information outlining in sufficient detail reasonably satisfactory to the Lender the effect of consolidating Excluded Funds, if applicable, and each be accompanied by (or be delivered concurrently with the financial statements under this Section 6.2(a)) a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements certified presents fairly in all material respects the consolidated financial position of the Borrower on the date thereof and consolidated results of operations and consolidated cash flows of the Borrower for the periods covered thereby; and (IV) be certified, without qualification limitation as to scope, by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ PricewaterhouseCoopers LLP or by other another firm of independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated DebtLender;
(b) as soon as practicable, but in any event not later than fifty (50) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower, (i) copies of the unaudited interim condensed consolidated balance sheet of Zale and its Subsidiaries the Borrower as at the end of such fiscal quarter, and (ii) the related unaudited interim condensed consolidated statement of income and unaudited interim condensed consolidated statement of cash flow of the Borrower for such fiscal quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's Borrower’s fiscal year then elapsed, all in reasonable detail and, with respect to clauses (i) and (ii), prepared in a manner consistent with the accounting practices and policies employed with respect to the audited financial statements reported in the Borrower’s most recent Form 10-K filed with the Securities and Exchange Commission and prepared in accordance with generally accepted accounting principles (subject Rule 10-01 of Regulation S-X of the Securities and Exchange Commission, and including footnotes or otherwise accompanied by information outlining in sufficient detail reasonably satisfactory to year-end adjustments the Lender the effect of consolidating Excluded Funds, if applicable, and except for the absence of notes), (ii) concurrently therewith a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers that Borrower that, in the information contained in such opinion of management financial statements fairly presents in of the Borrower, all material respect adjustments necessary for a fair presentation of (A) the results of operations of the Borrower for the periods covered thereby, (B) the financial position of Zale and its Subsidiaries on the Borrower at the date thereof thereof, and (C) the cash flows of the Borrower for periods covered thereby have been made (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections Sections 6.2(a)(i) and (aii) and (b) above, a statement compliance certificate certified by a Senior Officer of each the principal financial officer, treasurer or general counsel of the Borrowers Borrower in substantially the form of Exhibit D C hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) 8 and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet DateDecember 31, 2018;
(d) within ten (10) Business Days promptly after the filing or mailing thereofsame are available, copies of all material annual, interim and current reports and any other report of a financial material nature filed by (it being understood that filings in the Borrowers with the Securities and Exchange Commission or sent to the stockholders ordinary course of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered business pursuant to Sections 10.4(a13(d), (f) and (b)g) of the Securities Exchange Act of 1934 are not material) which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, respectively);and not otherwise required to be delivered to the Lender pursuant hereto; and
(e) from time to time such other financial data and information (including accountants’ management letters) as the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers Lender may reasonably request. Documents required to be delivered pursuant to this Section 6.2 may be delivered simultaneously electronically and if so delivered, shall be deemed to have been delivered on the date on which the Borrower posts such documents, or provides a link thereto on the Borrower’s internet website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other replacement website of which the Borrower has given proper notice to the Lender or on the SEC’s website ▇▇▇.▇▇▇.▇▇▇ to the extent that any such documents are included in materials otherwise filed with the delivery of the financial statements referred to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;SEC.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Administrative Agent (and the Administrative Agent will promptly, after receipt thereof, deliver to the Lenders:):
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young LLP, any nationally recognized firm of independent certified public accountants or by other independent certified public accountants reasonably satisfactory to the Agent, Administrative Agent and (ii) a statement certified by the annual 10-K reports chief financial officer or the treasurer of Zale filed the Borrower in substantially the form of Exhibit F attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the Securities and Exchange Commission; covenants contained in §8 hereof and (iiiif applicable) a certification by a Senior Officer of Zale setting forth reconciliations to reflect changes in GAAP since the rating of the Rated DebtBalance Sheet Date;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower, (i) copies of the unaudited consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the chief financial officer or the treasurer of the Borrowers Borrower that to the best of the Borrower’s knowledge, the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments), ) and (iiiii) a narrative discussion Compliance Certificate as of the operating results of the Borrowers and each of their divisions for the such fiscal quarter most recently ended end;
(c) from time to time such other financial data and information as the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange CommissionAdministrative Agent or any Lender may reasonably request;
(i) simultaneously with the delivery promptly upon becoming aware of the management prepared financial statements referred to occurrence of any actual or claimed “Event of Termination” or similar event under and as defined in subsection (b) above, a variance report comparing, for each period (including the portion any of the fiscal year documents relating to date) covered by such financial statements, such financial statements with (A) the annual budget any receivables securitization transaction or other financing of any special purpose receivables Subsidiary of the BorrowersBorrower, entered into or guaranteed by the Borrower and/or any of its Subsidiaries and (B) then in effect, notice thereof, which notice shall describe such Event of Termination or similar event and indicate what steps the financial statements of Borrower and its Subsidiaries are taking to remedy the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, same and (ii) simultaneously promptly upon request therefor, such other information with respect thereto as the Administrative Agent shall reasonably request; and
(e) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements referred Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. All Confidential Information concerning the Borrower supplied by the Borrower to the Lenders pursuant to the terms hereof will be held in subsections confidence by the Lenders and the Lenders shall not disclose such Confidential Information except as permitted by §25 of this Credit Agreement. Documents required to be delivered pursuant to this §6.4 (ato the extent any such documents are included in materials otherwise filed with the United States Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at ▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, the Issuing Bank and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent, the Issuing Bank or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, the Issuing Bank or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §§6.4(a) and (b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, a statement certified and in any event shall have no responsibility to monitor compliance by a Senior Officer the Borrower with any such request for delivery, and each Lender and the Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of each such documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrowers in substantially Borrower hereunder (collectively, “Borrower Materials”) by posting the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with Borrower Materials on IntraLinks or another similar electronic system (the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments“Platform”) and (if applicableii) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year certain of the Borrowers Lenders may be delivered simultaneously with the delivery of the financial statements referred “public-side” Lenders (i.e., Lenders that do not wish to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other receive material non-public information with respect to the purchase Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and sale of ZFT Receivables pursuant conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Receivables Facility Documents Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (y) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (D) the Administrative Agent and the Arranger shall request in be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the exercise Platform not designated “Public Investor” and the Administrative Agent, the Issuing Bank and the Lenders agree not to trade securities on the basis of its reasonable discretion;any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Administrative Agent (and the Administrative Agent will promptly, after receipt thereof, deliver to the Lenders:):
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year (or, if earlier, within fifteen (15) days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of Zalethe Borrower, (i) the consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young LLP, any nationally recognized firm of independent certified public accountants or by other independent certified public accountants reasonably satisfactory to the Agent, Administrative Agent and (ii) a statement certified by the annual 10-K reports chief financial officer or the treasurer of Zale filed the Borrower in substantially the form of Exhibit B attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the Securities and Exchange Commission; covenants contained in §8 hereof and (iiiif applicable) a certification by a Senior Officer of Zale setting forth reconciliations to reflect changes in GAAP since the rating of the Rated DebtBalance Sheet Date;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year (or, if earlier, within ten (10) days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of Zalethe Borrower, (i) copies of the unaudited consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the chief financial officer or the treasurer of the Borrowers Borrower that to the best of the Borrower’s knowledge, the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments), ) and (iiiii) a narrative discussion Compliance Certificate as of the operating results of the Borrowers and each of their divisions for the such fiscal quarter most recently ended end;
(c) from time to time such other financial data and information as the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange CommissionAdministrative Agent or any Lender may reasonably request;
(i) simultaneously with the delivery promptly upon becoming aware of the management prepared financial statements referred occurrence of any actual or claimed Event of Termination under any Material Securitization Transaction the result of which would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to in subsection (b) above, a variance report comparing, for each period (including accelerate the portion maturity thereof or require the repurchase of the fiscal year receivables sold thereunder, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to date) covered by such financial statements, such financial statements with (A) remedy the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, same and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) abovepromptly upon request therefor, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations such other information with respect to thereto as the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;Administrative Agent shall reasonably request; and
(de) within ten (10) Business Days promptly after the filing or mailing thereofsame are available, copies of all material reports of a each annual report, proxy or financial nature filed by the Borrowers with the Securities and Exchange Commission statement or other report or communication sent to the stockholders of Zale (other than the annual 10-K Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the quarterly 10-Q reports Borrower may file or be required to file with the Securities Exchange Commission under Section 13 or 15(d) of Zale the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. All Confidential Information concerning the Borrower supplied by the Borrower to the Lenders pursuant to the terms hereof will be held in confidence by the Lenders and the Lenders shall not disclose such Confidential Information except as permitted by §25 of this Credit Agreement. Documents required to be delivered pursuant to Sections 10.4(athis §6.4 (to the extent any such documents are included in materials otherwise filed with the United States Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at ▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, each Issuing Bank and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent, any Issuing Bank or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, such Issuing Bank or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Co-Lead Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b), respectively);
(eii) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year certain of the Borrowers Lenders may be delivered simultaneously with the delivery of the financial statements referred “public-side” Lenders (i.e., Lenders that do not wish to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other receive material non-public information with respect to the purchase and sale of ZFT Receivables pursuant Borrower or its securities) (each, a “Public Lender”); provided, however, that each Public Lender shall identify at least one employee who may receive material non-public information with respect to the Receivables Facility Documents Borrower or its securities. The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (y) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (D) the Administrative Agent and the Co-Lead Arrangers shall request in be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the exercise Platform not designated “Public Investor” and the Administrative Agent, the Issuing Banks and the Lenders agree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its reasonable discretion;Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year Fiscal Year of Zalethe Borrowers, (i) the consolidated balance sheet of Zale BGI and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified certified, without qualification and without an expression of uncertainty as to the ability of BGI or any of its Subsidiaries to continue as going concerns, by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrowers, (i) copies of the unaudited consolidated balance sheet of Zale BGI and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer the principal financial or accounting officer of each of the Borrowers BGI that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale BGI and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) aboveabove and (i) below, and promptly on the occurrence of a Cash Dominion Event, a statement certified by a Senior Officer the principal financial or accounting officer of each BGI, on behalf of the Borrowers Borrowers, in substantially the form of Exhibit D B hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 §10, the calculation of the Fixed Charge Coverage Ratio, the calculation of Consolidated EBITDA for the most recently ended period of four (4) consecutive Fiscal Quarters of BGI and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and its Subsidiaries (if applicable) ), reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet DateDate and setting forth the projections and other information required pursuant to §8.4(g);
(d) within ten (10) Business Days after contemporaneously with the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than any of the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively)Borrowers;
(e) on the earlier of (i) fifteen (15) days after the end of each calendar month, or (ii) contemporaneously with any delivery of a Borrowing Base Report pursuant to the corresponding requirement under the First Lien Credit Agreement, a Borrowing Base Report setting forth the ABL Borrowing Base, the Excess Availability (and, if different, the Adjusted Excess Availability), and, to the extent applicable, an updated Schedule 7.24 as at the end of such fiscal month or other date, as applicable; and provided, however, that the Borrowers shall deliver to the Administrative Agent a Borrowing Base Report within five (5) days after the end of each calendar week setting forth the ABL Borrowing Base and the Excess Availability (and, if different, the Adjusted Excess Availability) as at the end of such calendar week (i) for the period of December 15 of each Fiscal Year through the end of such Fiscal Year, (ii) at all times when the Seasonal Availability Requirement is in effect, (iii) at all times when Adjusted Excess Availability is less than the greater of (x) 20% of the lesser of (1) the ABL Borrowing Base or (2) the then Total First Lien Commitments, or (y) $80,000,000, (iv) at all times when a Default or Event of Default has occurred and is continuing, and (v) during the continuance of a Cash Dominion Event, in all cases, together with such other information relating to the Collateral as the Administrative Agent shall reasonably request, and accompanied by all supporting detail, reports and documentation relating to the ABL Borrowing Base or any component thereof; provided that if any of the foregoing events occurs such that the Borrowers are obligated to deliver Borrowing Base Reports on a weekly basis, the Borrowers shall continue to deliver such weekly Borrowing Base Reports for a period of sixty (60) days (notwithstanding that the circumstances giving rise to such weekly delivery requirement may no longer exist) and after such an event occurs on more than two occasions during any twelve month period, weekly Borrowing Base Reports shall continue to be delivered until twelve (12) months have elapsed from the date the first such weekly Borrowing Base Report was first delivered (notwithstanding that the circumstances giving rise to such weekly delivery requirement may no longer exist);
(f) contemporaneously with any delivery made in connection with clause (e) of this §8.4, (i) an Accounts Receivable report broken down by each credit card processor and (ii) an inventory stock ledger report with respect to any Accounts Receivable and inventory included in the ABL Borrowing Base;
(g) within thirty (30) days after the end of each fiscal quarter (except that Fiscal Year, and from time to time upon request of the Settlement Statement Administrative Agent, monthly projections consisting of balance sheets, income statements, cash flow statements and availability reports for the last fiscal quarter upcoming Fiscal Year of a fiscal year of BGI and its Subsidiaries in substantially the Borrowers may be same form as, and updating, those projections delivered simultaneously with to the delivery of the financial statements Lenders and referred to in subsections §7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this §8.4(g);
(ah) on or before each anniversary of the Effective Date, each Borrower or Guarantor shall deliver to the Administrative Agent a certificate, in substantially the form attached to the Security Agreement as Exhibit A, executed by an Authorized Officer of such Person (A) certifying that there has been no change in any information provided in the perfection certificate delivered in connection with the Security Agreement since the date on which such perfection certificate was signed by such Person (or most recent updated pursuant to this §8.4(h)) or (B) attaching an updated perfection certificate for such Person certified to be true and correct as of the date thereof; and
(bi) above)as soon as practicable, but in any event not later than thirty (30) days after the monthly "Settlement Statements" end of ZFT each fiscal month of the Borrowers, (A) copies of the "Settlement Statement") unaudited consolidated balance sheet of BGI and its Subsidiaries as at the end of such month, and the related consolidated statement of income and consolidated statement of cash flow for the immediately preceding portion of the Borrowers’ fiscal quarteryear then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the requirements principal financial or accounting officer of BGI that the information contained in such financial statements fairly presents the financial position of BGI and its Subsidiaries on the date thereof (subject to year-end adjustments), (B) copies of the Receivables Facility Documents unaudited consolidated balance sheet of each of Borders Superstores and Paperchase as at the end of such month, and the related consolidated statement of income and consolidated statement of cash flow for the portion of their respective fiscal year then elapsed, all in reasonable detail, together with a certification by the principal financial or accounting officer of Borders Superstores and Paperchase that the information contained in such financial statements fairly presents the financial position of each of Borders Superstores and Paperchase on the date thereof (subject to year-end adjustments), (C) a report of the accounts payable of the Borrowers and Guarantors (including an aging thereof), and (D) a report of Net Debt as of the end of such fiscal month;
(j) weekly within five (5) days after the end of each calendar week (but only if Adjusted Excess Availability is then less than or equal to $105,000,000), a copy of the screen print from JPMorgan Chase Bank, N.A. and all other providers of purchase cards to any Borrower or Guarantor stating the amount of the Borrowers’ and Guarantors’ outstanding obligations on account of such purchase card as of the end of such calendar week;
(k) from time to time such other financial data and information with respect (including accountants, management letters) as the Administrative Agent or any Lender may reasonably request; and
(l) as and when required all information set forth in §5.1 of each applicable Intellectual Property Security Agreement. Documents required to be delivered pursuant to this §8.4 (to the purchase extent any such documents are included in materials otherwise filed with the United States Securities and sale of ZFT Receivables pursuant Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents or delivers such documents to the Receivables Facility Documents as Administrative Agent for posting to the Lenders, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed in §16.6; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrowers shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the exercise Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of its reasonable discretion;such documents.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will shall deliver to each of the Agent, Canadian Agent and the LendersBanks:
(a) as soon as practicable, but in any event not later than ninety-five fifty (9550) days after the end of each fiscal year quarter of Zalethe Borrowers, (i) copies of the consolidated balance sheet and statement of Zale income of the Borrowers (excluding that portion of the Parent's assets, liabilities, income and its Subsidiaries expenses attributable to non-Borrowers) as at the end of such yearquarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal yearflows, all such consolidated statements to be in reasonable detail, detail and prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating principal financial or accounting officer of the Rated DebtParent (the "CFO") that these consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof and the results of operations for the period then ended;
(b) as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal year of ZaleParent, (i) copies of the unaudited consolidated balance sheet and statement of Zale and its Subsidiaries income of the Parent as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal subject to year then elapsedend adjustments, and the related consolidated statement of cash flow for the portion of Zale's fiscal year then elapsedflows, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) with a certification by a Senior Officer of each the CFO that these consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers that Parent as at the information contained in such management financial statements fairly presents in all material respect the financial position close of Zale and its Subsidiaries business on the date thereof and the results of operations for the period then ended;
(subject to year-c) as soon as practicable, but, in any event not later than one hundred (100) days after the end adjustments), (iii) a narrative discussion of each fiscal year of the operating results Parent, the consolidated and consolidating balance sheets of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, Parent as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such periodyear, statements of cash flows, and (iv) the quarterly 10-Q reports related consolidated and consolidating statements of Zale filed with income, each setting forth in comparative form the Securities figures for the previous fiscal year, all such consolidated and Exchange Commission;
(i) simultaneously with the delivery of the management prepared consolidating financial statements referred to be in subsection (b) abovereasonable detail, a variance report comparingprepared in accordance with GAAP and, for each period (including with respect to the portion of the fiscal year to date) covered by such consolidated financial statements, such financial statements with certified by Coopers & ▇▇▇▇▇▇▇ L.L.P. or another independent accounting firm of national standing acceptable to the Agent (Athe "Accountants") the annual budget and including a reconciliation of the Borrowers, and (B) the consolidated financial statements of the Borrowers for the comparable date or period during the prior fiscal year (excluding that portion of the Parent's assets, liabilities, income and expenses attributable to non-Borrowers, and (ii) simultaneously with to the delivery consolidated financial statements of the financial statements referred to in subsections (a) and (b) aboveParent. In addition, a statement certified by a Senior Officer of each of simultaneously therewith, the Borrowers shall use their reasonable best efforts to provide the Banks with a written statement from such Accountants to the effect that the Borrowers are in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained set forth in Section 12 (ss.8 hereof, and including calculations with respect that, in making the examination necessary to said certification, nothing has come to the financial information required by Section 7.14 attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such Accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in connection with possible Performance Adjustments) and (if applicable) reconciliations such statement any such Default or Event of Default; provided, that such Accountants shall not be liable to reflect material changes in generally accepted accounting principles since the Balance Sheet DateBanks for failure to obtain knowledge of any Default or Event of Default;
(d) within ten (10) Business Days after the filing or mailing thereofas soon as practicable, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other but in any event not later than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that of the Settlement Statement for Borrowers, copies of the last fiscal quarter of a fiscal year Accounts Receivable aging reports of the Borrowers may be delivered simultaneously with and the delivery of the financial statements referred to consolidated liquidity calculation for such date required under ss.8.4 hereof, all in subsections (a) reasonable detail and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with GAAP, with a certification by the requirements CFO that these reports and calculation are prepared in accordance with GAAP and fairly present the Accounts Receivable of the Receivables Facility Documents and such other information with respect to Borrowers as at the purchase and sale close of ZFT Receivables pursuant to business on the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretiondate thereof;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the AgentLenders (other than the items described in clause (f) of this Section 8.4, Canadian which the Borrower will deliver to the Administrative Agent and which the Lenders:Administrative will, upon the request of any Lender, deliver to such Lender):
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of ZaleParent, (i) the consolidated and consolidating balance sheet of Zale Parent and its Subsidiaries as at the end of such year, and the related consolidated and consolidating statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified (with respect to the consolidated statements), without qualification and without an expression of uncertainty as to the ability of Parent or any of its Subsidiaries to continue as going concerns, by Arth▇▇ BDO S▇▇▇e▇▇▇▇ ▇▇▇ or , LLP and/or by other independent certified public accountants reasonably satisfactory to the Administrative Agent, together with (i) an audit report of such accountants stating that such consolidated financial statements fairly present in all material respects the consolidated financial condition and results of operations of Parent and its Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP and (ii) the annual 10-K reports a copy of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debttheir accountants’ management letter for such fiscal year;
(bi) with respect to each of the first three Fiscal Quarters of each fiscal year of the Parent during which the Excess Availability Percentage is equal to or greater than 30% at all times, as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year of Zalesuch Fiscal Quarter, (i) copies of the unaudited consolidated and consolidating balance sheet of Zale Parent and its Subsidiaries as at the end of such quarter, and the related consolidated and consolidating statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's Parent’s fiscal year then elapsed, together with, in the case of the consolidated statements, comparisons to corresponding quarterly and year-to-date periods for the previous year, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of Parent that the information contained in such financial statements fairly presents the financial position of Parent and its Subsidiaries on the date thereof (subject to year-end adjustments) and (ii) with respect to each of the first eleven (11) months of each fiscal year of the Parent during which the Excess Availability Percentage is less than 30% at any time, as soon as practicable, but in any event not later than thirty (30) days after the end of each such month, copies of the unaudited consolidated and consolidating balance sheet of Parent and its Subsidiaries as at the end of such month, and the related consolidated and consolidating statement of income and consolidated statement of cash flow for the portion of Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer the principal financial or accounting officer of each of the Borrowers Parent that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale Parent and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above), a statement certified by a Senior Officer the principal financial or accounting officer of each of the Borrowers Parent in substantially the form of Exhibit D hereto and (a “Compliance Certificate”) setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations Fixed Charge Coverage Ratio and, if applicable, with respect to the financial information periods for which the Parent is required by Section 7.14 to maintain minimum EBITDA under §10.1 in connection accordance with possible Performance Adjustments) the terms thereof, computations evidencing compliance with the covenant contained in §10.1 and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles GAAP since the Balance Sheet Date;
(d) within ten (10) Business Days after contemporaneously with the filing or mailing thereof, copies of all material reports documents of a financial nature (or including any financial information) filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively)Parent;
(e) to the Agent within thirty twenty (3020) days after the end of each fiscal quarter month or at such earlier time as the Administrative Agent may reasonably request, (except i) a Borrowing Base Report setting forth the Borrowing Base as at the end of such fiscal month or other date so requested by the Administrative Agent and (ii) a listing of all locations where inventory of Signature Fruit is located and the value of the inventory located thereon, in form and detail satisfactory to the Administrative Agent; provided that the Settlement Statement for Borrowing Base Report will be delivered weekly setting forth the last fiscal quarter Borrowing Base as at the end of each calendar week within five (5) days after the ending of each week during which the Excess Availability Percentage is less than 30% at any time (it being understood that such weekly Borrowing Base Reports shall reflect changes in Accounts Receivable and that changes in inventory and ineligible Accounts Receivable and inventory will continue to be updated on a monthly basis);
(f) contemporaneously with any delivery made in connection with clause (e) of this §8.4, an Accounts Receivable aging report, an accounts payable aging report and an inventory summary;
(g) as soon as available and in any event prior to the beginning of each fiscal year of Parent, (i) statements of forecasted consolidated income and cash flows for Parent and its Subsidiaries for each fiscal month in the Borrowers may be delivered simultaneously with the delivery next fiscal year and a forecasted consolidated balance sheet of Parent and its Subsidiaries as of the financial last day of each fiscal month in such next fiscal year, and a comparison of the projected Excess Availability as of the last day of each fiscal month in such next fiscal year, and (ii) statements referred to of forecasted consolidated income and cash flows for Parent and its Subsidiaries for the following fiscal year and a forecasted consolidated balance sheet of Parent and its Subsidiaries as of the last day of the following fiscal year, and a comparison of the projected Excess Availability as of the last day of the following fiscal year, together (in subsections the case of clauses (ai) and (bii)) above)with supporting assumptions which were reasonable when made, all prepared in good faith in reasonable detail and consistent with Parent’s past practices in preparing projections and otherwise reasonably satisfactory in scope to the monthly "Settlement Statements" Administrative Agent;
(h) promptly after submission to any Governmental Authority, all material documents and information furnished to such Governmental Authority in connection with any investigation of ZFT any Borrower or any Subsidiary of a Borrower other than routine inquiries by such Governmental Authority and except as prohibited by law;
(the "Settlement Statement"i) by November 30 of each year, an off-season reserve analysis for the immediately preceding remainder of such fiscal quarteryear ending on March 31, prepared in accordance form and detail consistent with past practices and satisfactory to the requirements of the Receivables Facility Documents and Administrative Agent; and
(j) from time to time such other financial data and information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Administrative Agent shall request in the exercise of its reasonable discretion;or any Lender may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement (Seneca Foods Corp /Ny/)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver and will cause MCRC to each of deliver to the Administrative Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each of its fiscal year years, unless, in the case of ZaleMCRC, MCRC has filed for an extension in accordance with §7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to §7.4(g):
(i) in the case of MCRLP, the audited consolidated balance sheet of Zale MCRLP and its Subsidiaries as subsidiaries at the end of such year, and the related audited consolidated statement statements of income operations, owner’s equity (deficit) and consolidated statement cash flows for the year then ended, in each case (except for statements of cash flow for and owner’s equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders’ equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and, in each case, accompanied by an auditor’s report prepared by the Accountants without a “going-concern” or like qualification or exception and each without any qualification or exception as to the scope of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debtaudit;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the its first three (3) fiscal quarters of each fiscal year of Zale, quarters:
(i) in the case of MCRLP, copies of the unaudited consolidated balance sheet of Zale MCRLP and its Subsidiaries subsidiaries as at the end of such quarter, and the related unaudited consolidated statement statements of income for such quarter operations, owner’s equity (deficit) and cash flows for the portion of Zale's MCRLP’s fiscal year then elapsed, and the related consolidated statement with supplemental consolidating schedules (except with respect to statements of cash flow and owner’s equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the portion of Zale's MCRC’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders’ equity) provided by MCRC; all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to yearGAAP on the same basis as used in preparation of MCRC’s Form 10-end adjustments and except for Q statements filed with the absence of notes)SEC, (ii) together with a certification by a Senior Officer the chief financial officer or senior vice president of each finance of the Borrowers MCRLP or MCRC, as applicable, that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale MCRLP or MCRC (as the case may be) and its Subsidiaries subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above(for the first three fiscal quarters of each fiscal year), a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto signed by the chief financial officer or senior vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in §9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (§8.6 and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date§9 hereof;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed promptly if requested by the Borrowers with the Securities and Exchange Commission Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or sent letters of no material weakness) submitted to the stockholders Borrower, MCRC or any of Zale (other than their respective Subsidiaries by the Accountants in connection with each annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year audit of the Borrowers may be delivered simultaneously with the delivery books of the financial statements referred Borrower, MCRC, or such Subsidiary by such Accountants or in connection with any interim audit thereof pertaining to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements any phase of the Receivables Facility Documents and business of the Borrower, MCRC or any other Guarantor or any such other information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretionSubsidiary;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Administrative Agent (and the Administrative Agent will promptly, after receipt thereof, deliver to the Lenders:):
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year (or, if earlier, within fifteen (15) days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of Zalethe Borrower, (i) the consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young LLP, any nationally recognized firm of independent certified public accountants or by other independent certified public accountants reasonably satisfactory to the Agent, Administrative Agent and (ii) a statement certified by the annual 10-K reports chief financial officer or the treasurer of Zale filed the Borrower in substantially the form of Exhibit B attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the Securities and Exchange Commission; covenants contained in §8 hereof and (iiiif applicable) a certification by a Senior Officer of Zale setting forth reconciliations to reflect changes in GAAP since the rating of the Rated DebtBalance Sheet Date;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the first three fiscal quarters of each fiscal year (or, if earlier, within ten (10) days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of Zalethe Borrower, (i) copies of the unaudited consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the chief financial officer or the treasurer of the Borrowers Borrower 47438543.7 that to the best of the Borrower’s knowledge, the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments), ) and (iiiii) a narrative discussion Compliance Certificate as of the operating results of the Borrowers and each of their divisions for the such fiscal quarter most recently ended end;
(c) from time to time such other financial data and information as the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange CommissionAdministrative Agent or any Lender may reasonably request;
(i) simultaneously with the delivery promptly upon becoming aware of the management prepared financial statements referred occurrence of any actual or claimed Event of Termination under any Material Securitization Transaction the result of which would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to in subsection (b) above, a variance report comparing, for each period (including accelerate the portion maturity thereof or require the repurchase of the fiscal year receivables sold thereunder, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to date) covered by such financial statements, such financial statements with (A) remedy the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, same and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) abovepromptly upon request therefor, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations such other information with respect to thereto as the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;Administrative Agent shall reasonably request; and
(de) within ten (10) Business Days promptly after the filing or mailing thereofsame are available, copies of all material reports of a each annual report, proxy or financial nature filed by the Borrowers with the Securities and Exchange Commission statement or other report or communication sent to the stockholders of Zale (other than the annual 10-K Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the quarterly 10-Q reports Borrower may file or be required to file with the Securities Exchange Commission under Section 13 or 15(d) of Zale the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. All Confidential Information concerning the Borrower supplied by the Borrower to the Lenders pursuant to the terms hereof will be held in confidence by the Lenders and the Lenders shall not disclose such Confidential Information except as permitted by §25 of this Credit Agreement. Documents required to be delivered pursuant to Sections 10.4(athis §6.4 (to the extent any such documents are included in materials otherwise filed with the United States Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at ▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, each Issuing Bank and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent, any Issuing Bank or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, such Issuing Bank or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender 47438543.7 and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Co-Lead Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b), respectively);
(eii) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year certain of the Borrowers Lenders may be delivered simultaneously with the delivery of the financial statements referred “public-side” Lenders (i.e., Lenders that do not wish to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other receive material non-public information with respect to the purchase and sale of ZFT Receivables pursuant Borrower or its securities) (each, a “Public Lender”); provided, however, that each Public Lender shall identify at least one employee who may receive material non-public information with respect to the Receivables Facility Documents Borrower or its securities. The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (y) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (D) the Administrative Agent and the Co-Lead Arrangers shall request in be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the exercise Platform not designated “Public Investor” and the Administrative Agent, the Issuing Banks and the Lenders agree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its reasonable discretion;Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross 47438543.7 negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrowers Company will deliver to each of the Agent, Canadian Agent and the LendersInvestors:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Company, (i) the consolidated balance sheet of Zale the Company and its Subsidiaries and the consolidating balance sheet of the Company and its Subsidiaries (with any reference to consolidating statements of Subsidiaries in this Section 7.2 to mean that term as applied to the accounts and financial statements, as applicable, of business lines), each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to of nationally recognized standing selected by the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated DebtCompany;
(b) as soon as practicable, but in any event not later than fifty (50i) forty-five (45) days after the end of each fiscal quarter of the first three Company and (ii) sixty (60) days after the end of the last fiscal quarters quarter of each fiscal year of Zalethe Company, (i) copies of the unaudited consolidated balance sheet of Zale the Company and each of its Subsidiaries and the unaudited consolidating balance sheet of the Company and each of its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income for such quarter and consolidated statement of cash flow and consolidating statement of income for the portion of Zalethe Company's fiscal year then elapsed, and each setting forth in comparative form the related consolidated statement of cash flow figures for the portion of Zale's previous fiscal year then elapsedand a comparison setting forth the corresponding figures from the budgeted or projected figures for such period, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)principles, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Company that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Company and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(c) as soon as practicable, but in any event within (i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter of the first two (except that the Settlement Statement for the last 2) months in each fiscal quarter of a the Company, (ii) forty-five (45) days after the end of the last month in each fiscal quarter, other than the last month of any year, and (iii) sixty (60) days after the end of the last month in each fiscal year of the Borrowers may be delivered simultaneously Company, unaudited monthly consolidated financial statements of the Company and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Company and its Subsidiaries for such month, each setting forth in comparative form the figures for the previous fiscal year and a comparison setting forth the corresponding figures from the budgeted 12 -12- or projected figures for such period and prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Company that the information contained in such financial statements fairly presents the financial condition of the Company and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) contemporaneously with the delivery filing or mailing thereof, copies of all materials filed with the Commission or sent to the stockholders of the Company; and
(e) from time to time such other financial statements referred data and information (including accountants' management letters) as any Investor may reasonably request. So long as the Credit Agreement remains in effect, the Company may satisfy its obligations under this Section 7.2 by delivering to the Agent (as defined in subsections the Credit Agreement), for the benefit of each Investor, the information which it is required to deliver to the Banks under the corresponding covenants contained in the Credit Agreement at the times required by such covenants. In the event the Credit Agreement is no longer in effect, the Company may satisfy its obligations under this Section 7.2 by delivering to the Investors the information required under Section 7.2 (a) and (b) above)hereof or, the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance contemporaneously with the requirements filing thereof, copies of the Receivables Facility Documents Company 's Form 10-Q and such other information Form 10-K filed with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;Commission.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver and will cause MCRC to each of deliver to the Administrative Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each of its fiscal year years, unless, in the case of ZaleMCRC, MCRC has filed for an extension in accordance with §7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to §7.4(g):
(i) in the case of MCRLP, the audited consolidated balance sheet of Zale MCRLP and its Subsidiaries as subsidiaries at the end of such year, and the related audited consolidated statement statements of income operations, owner’s equity (deficit) and consolidated statement cash flows for the year then ended, in each case (except for statements of cash flow for and owner’s equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders’ equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and, in each case, accompanied by an auditor’s report prepared by the Accountants without a “going-concern” or like qualification or exception and each without any qualification or exception as to the scope of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debtaudit;
(b) as soon as practicable, but in any event not later than fifty forty-five (5045) days after the end of each of the its first three (3) fiscal quarters of each fiscal year of Zale, quarters:
(i) in the case of MCRLP, copies of the unaudited consolidated balance sheet of Zale MCRLP and its Subsidiaries subsidiaries as at the end of such quarter, and the related unaudited consolidated statement statements of income for such quarter operations, owner’s equity (deficit) and cash flows for the portion of Zale's MCRLP’s fiscal year then elapsed, and the related consolidated statement with supplemental consolidating schedules (except with respect to statements of cash flow and owner’s equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the portion of Zale's MCRC’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders’ equity) provided by MCRC; all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to yearGAAP on the same basis as used in preparation of MCRC’s Form 10-end adjustments and except for Q statements filed with the absence of notes)SEC, (ii) together with a certification by a Senior Officer the chief financial officer or senior vice president of each finance of the Borrowers MCRLP or MCRC, as applicable, that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale MCRLP or MCRC (as the case may be) and its Subsidiaries subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (iic) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above(for the first three fiscal quarters of each fiscal year), a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto signed by the chief financial officer or senior vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in §9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (§8.6 and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date§9 hereof;
(d) within ten promptly if requested by the Administrative Agent, a copy of each report (10including any so-called letters of reportable conditions or letters of no material weakness) Business Days after submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material reports of a financial nature sent to the holders of any Indebtedness of the Borrower or any Guarantor (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;
(f) subject to subsection (g) below, contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed by the Borrowers with the Securities and Exchange Commission SEC or sent to the stockholders of Zale MCRC;
(other g) as soon as practicable, but in any event not later than ninety (90) days after the annual end of each fiscal year of MCRC, copies of the Form 10-K reports statement filed by MCRC with the SEC for such fiscal year, and the quarterly 10as soon as practicable, but in any event not later than forty-Q reports of Zale delivered pursuant to Sections 10.4(a) and five (b), respectively);
(e) to the Agent within thirty (3045) days after the end of each fiscal quarter (except that of MCRC, copies of the Settlement Statement Form 10-Q statement filed by MCRC with the SEC for such fiscal quarter, provided that, in either case, if MCRC has filed an extension for the last fiscal filing of such statements, MCRC shall deliver such statements to the Administrative Agent within ten (10) days after the filing thereof with the SEC which filing shall be within fifteen (15) days of MCRC’s filing for such extension or such sooner time as required to avert a Material Adverse Effect on MCRC;
(h) from time to time, but not more frequently than once each calendar quarter so long as no Default or Event of Default has occurred and is continuing, such other financial data and information about the Borrower, MCRC, the other Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request, and which is prepared by such Person in the normal course of its business or is required for securities and tax law compliance, including pro forma financial statements described in §9.9(b)(ii), complete rent rolls for the Unencumbered Properties and summary rent rolls for the other Real Estate, and insurance certificates with respect to the Real Estate (including the Unencumbered Properties) and tax returns (following the occurrence of a fiscal year Default or Event of Default or, in the Borrowers may be delivered case of MCRC, to confirm MCRC’s REIT status), but excluding working drafts and papers and privileged documents; and
(i) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding first three fiscal quarterquarters of each fiscal year) above, prepared in accordance updates to Schedule 6.3(a) and Schedule 6.3(c) hereto, and simultaneously with the requirements delivery of the Receivables Facility Documents and such other information with respect financial statements referred to the purchase and sale of ZFT Receivables pursuant in subsection (a) above, updates to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;Schedule 6.19 hereto.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Agent, Canadian Agent and the Lenders:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each the fiscal year of Zalethe Borrowers ended December 31, (i) 2002, the consolidated balance sheet of Zale and its Subsidiaries the Borrowers as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ Ernst & Young or by other independent certified public accountants reasonably accounts satisfactory to the Administrative Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than fifty within forty-five (5045) days after of the end of each fiscal quarter of the first three Borrowers commencing with the fiscal quarters of each fiscal year of Zalequarter ended December 31, (i) 2002, copies of the unaudited consolidated balance sheet of Zale and its Subsidiaries the Borrowers as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's the Borrowers' fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)principles, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale and its Subsidiaries the Borrowers on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event within forty-five (iii45) a narrative discussion days of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such periodthe calendar month ending December 31, 2002, and within thirty (iv30) days after the quarterly 10-Q reports end of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) aboveeach calendar month thereafter, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the unaudited monthly consolidated financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowerssuch month, and each prepared in accordance with generally accepted accounting principles;
(iid) simultaneously with the delivery of the financial statements referred to in subsections (a), (b) and (bc) above, a statement certified by a Senior Officer of each the principal financial or accounting officer of the Borrowers Parent in substantially form and substance satisfactory to the form of Exhibit D hereto Agents (the "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) ss.12 and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(de) within ten (10) Business Days after the filing or mailing thereofpromptly, copies of all material pleadings, papers, notices, orders and other papers filed in or issued from the Bankruptcy Court or any appellate court in the Cases and copies of all reports filed with the Office of the United States Trustee relating to any of the Cases;
(f) on the first Business Day of each month, a financial nature filed by rolling thirteen (13) week cash flow projection, of the Borrowers with the Securities in a form and Exchange Commission or sent in such detail as is reasonably satisfactory to the stockholders Administrative Agent, updating the prior cash flow projection and, for prior periods ending up to one week prior to the date of Zale the report, showing actual performance and any variances of actual performance from projected performance;
(other g) from time to time upon request of any Agent, a summary of accounts receivable and accounts payable of the Borrowers, including accounts payable to lessors of goods and holders of Prior Permitted Liens on account of dispositions of goods or collateral;
(h) not less frequently than semi-monthly, and from time to time upon any Agent's request, a Borrowing Base Certificate in the annual 10-K reports and form of EXHIBIT D attached hereto (the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively"BORROWING BASE CERTIFICATE");
(ei) from time to time upon request, a written or oral report, in detail reasonably satisfactory to any Agent, as to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year status of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred Reorganization Plan; and
(j) from time to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and time such other financial data and information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents (including accountants' management letters) as the any Agent shall request in the exercise of its reasonable discretion;may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Agent, Canadian Agent and the LendersLender:
(a) as soon as practicable, but in any event not later than ninety-five ninety (9590) days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified certified, without qualification qualification, by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated DebtLender;
(b) as soon as practicable, but in any event not later than fifty (50) days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower, (i) copies of the unaudited consolidated balance sheet of Zale the Borrower and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zalethe Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(ic) simultaneously contemporaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent generally to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);Borrower; and
(ed) from time to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and time such other financial data and information with respect to the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;Lender may reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (DSL Net Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower -------------------------------------------------- will deliver to each of the Agent, Canadian Agent and the Lenders:
: (a) as soon as practicable, but but, in any event not later than ninety-five (95) 90 days after the end of each fiscal year of Zalethe Borrower, (i) the consolidated balance sheet of Zale and its Subsidiaries the Borrower as at the end of such year, and the related consolidated statement of income statement, and consolidated statement of cash flow for such yearflows, each setting forth in comparative form the figures as of the end of and amounts for the previous fiscal year, all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principlesGAAP, and each of such financial statements certified without qualification by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or by other independent certified public accountants reasonably satisfactory to the Agent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange CommissionAccountants; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than fifty (50i) 45 days after the end of each of the first three fiscal quarters of each fiscal year of Zalethe Borrower, and (iii) 90 days after the end of the last fiscal quarter of each fiscal year, copies of the unaudited consolidated balance sheet sheet, income statement and statement of Zale and its Subsidiaries cash flows of the Borrower as at the end of such quarter, and the related consolidated statement of income for such quarter and for the portion of Zale's fiscal year then elapsedto date, and the related consolidated statement of cash flow comparing actual results with corresponding figures for the portion of Zale's same period in the preceding fiscal year, subject to year then elapsedend audit adjustments, all in reasonable detail and prepared in accordance with generally accepted accounting principles (subject to year-end adjustments and except for the absence of notes)GAAP, (ii) together with a certification by a Senior Officer of each the principal financial or accounting officer of the Borrowers Borrower ("CFO") that the information contained in such management financial statements fairly presents in all material respect the financial position of Zale and its Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 12 (and including calculations with respect to the financial information required by Section 7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(d) within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), respectively);
(e) to the Agent within thirty (30) days after the end of each fiscal quarter (except that the Settlement Statement for the last fiscal quarter of a fiscal year of the Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, have been prepared in accordance with GAAP, are complete and correct in all material respects, and fairly present the requirements financial condition of the Receivables Facility Documents Borrower and such other information with respect to its Subsidiaries as at the purchase and sale of ZFT Receivables pursuant to the Receivables Facility Documents as the Agent shall request in the exercise of its reasonable discretion;close
Appears in 1 contract
Sources: Multicurrency Credit Agreement (United States Filter Corp)