Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender: (a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years, (i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period, (ii) a certificate signed by the chief financial officer of Parent to the effect that: (A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries, (B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and (C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and (D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and (iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and (b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years, (i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management), (ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20, (c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years, (i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby, (d) if and when filed by any Borrower, (i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower, (iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and (iv) any other information that is provided by Parent to its shareholders generally, (e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change, (f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto. (g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers. (h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 2 contracts
Sources: Loan and Security Agreement (Hudson Highland Group Inc), Loan and Security Agreement (Hudson Highland Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's and each Borrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its each Borrower's, and each of their respective Subsidiaries' ', operations during such period,
(ii) a certificate signed by the chief financial officer of Parent and each Borrower, and each of their respective Subsidiaries, to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its each Borrower, and each of their respective Subsidiaries,
(B) B. the representations and warranties of Borrowers Parent and each Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Parent and each Borrower, and each of their respective Subsidiaries, has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of Parent's and each Borrower's, and each of Parent's their respective Subsidiaries', fiscal years,
(i) financial statements of Parent and its Subsidiaries each Borrower, and each of their respective Subsidiaries, for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of Parent's and each Borrower's, and each of Parent's their respective Subsidiaries', fiscal years,
(i) copies of Borrowers' Parent's and each Borrower's, and each of their respective Subsidiaries', Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent and each Borrower, and each of their respective Subsidiaries, as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries each Borrower, and each of their respective Subsidiaries, during the period covered thereby,
(d) if and when filed by Parent or any Borrower, or any of their respective Subsidiaries,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent or any Borrower Borrower, or any of their respective Subsidiaries, with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's and each Borrower's, and each of their respective Subsidiaries', federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent or any Borrower, or any of their respective Subsidiaries, to its any of their Members or shareholders generally,
(e) if and when filed by Parent or any Borrower Borrower, or any of their respective Subsidiaries, and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) Parent or any Borrower Borrower, or any of their Subsidiaries, conducts business or is required to pay any such excise tax, (ii) where Parent's or any Borrower's 's, or any of their respective Subsidiaries', failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Parent, Borrower or Subsidiary, or (iii) where Parent's or any Borrower's 's, or any of their respective Subsidiaries', failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower Parent or any Borrower, or any of their respective Subsidiaries, has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Parent or any Borrower, or any of their respective Subsidiaries, proposes to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Parent or any Borrower, or any of their respective Subsidiaries. 61 In addition to the financial statements referred to above, Borrowers Parent and each Borrower agree to deliver to Lender within 30 days of the end of each month, Parent's and each Borrower's, and each of their respective Subsidiaries', calculation of their respective EBITDA and financial statements statements, as well as a Borrowing Base Certificate, prepared on both a consolidated and consolidating basis to be determined prior to for the Activation Date immediately preceding month. Parent and each Borrower agree that no Borrower, Subsidiary of Parent or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrowers. Borrowers Parent and each Borrower agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Parent and each Borrower, and each of their respective Subsidiaries, as Lender reasonably may request. Each Parent and each Borrower waives waive the right to assert a confidential relationship, if any, it each may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 2 contracts
Sources: Loan and Security Agreement (Majestic Investor Capital Corp), Loan and Security Agreement (Majestic Investor Capital Corp)
Financial Statements, Reports, Certificates. Deliver Borrower shall deliver to Agent, with copies to each Lender:
: (a) as soon as available, but in any event within 30 thirty (30) days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parentthe Term, a balance sheet and profit and loss statement prepared by Borrower covering Borrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been , together with management prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance consolidating schedules as to which he or she may have knowledge each Borrower (by location); and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 ninety (90) days after the end of each fiscal year of Parent's fiscal years,
(i) Borrower, financial statements of Parent and its Subsidiaries Borrower for each such fiscal yearperiod, audited by independent certified public accountants reasonably acceptable to Agent Lender. Such financial statements shall include a balance sheet and certifiedprofit and loss statement and statements of cash flows, without any qualificationsif available, by such accountants to have been and the accountants' management letter, if any, shall be prepared in accordance with GAAP (such audited financial statements to include and shall be prepared on a balance sheetconsolidated basis. In addition, income statementBorrower shall deliver Borrower's Form 10-Qs, and statement of cash flow and10-Ks or 8-Ks, if preparedany, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as the same become available, but in and any event within 30 days prior other report reasonably requested by Lender relating to the start Collateral and the financial condition of each Borrower. Borrower shall also deliver with its financial statements, a certificate, substantially in the form of ParentExhibit 6.4, signed by Borrower's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such (or similar officer's good faith best estimate of ) to the financial performance of Parent and its Subsidiaries during the period covered thereby,
effect that (da) if and when filed by any Borrower,
(i) 10-Q quarterly all reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) statements or computer prepared information of any other filings made by any Borrower with the SEC kind or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect nature delivered or caused to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent be delivered to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Lender under this Section 6.4 fairly present Borrower's failure to pay any such applicable excise tax would result in a Lien financial condition and (b) there exists on the properties date of delivery of such certificate to Lender no condition or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that which constitutes a Default or an Event of Default, notice thereof and, among other things, certifying as to compliance with Section 7.10. Optical Cable – Loan and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.Security Agreement – EXECUTION VERSION
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with ------------------------------------------- copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:;
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) B. the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section ------- 7.20, andand ----
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,. ------------
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' ProjectionsBorrower's Projections and a business plan, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in all respects, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (DSG International LTD)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to Agent and each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year or 90 days in the case of a month that is the end of the fiscal year) after the end of each month during each of Parent's ’s fiscal yearsyears (the “Monthly Financial Report”),
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Restricted Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Restricted Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and,
(D) there are no unpaid payroll or payroll taxes that have become due from any each Borrower and Guarantor is in compliance with its obligations (including, without limitation, rental payment obligations) under each lease agreement relating to real property leased by such Borrower or Guarantor (except for such defaults described as required pursuant to Section 6.3(a)(ii)(C)), and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
LEGAL_US_W # 62188650.14 (iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Peninsula Gaming, LLC)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal yearyear or that is the month immediately following the Closing Date) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 120 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including, without limitation, (i) any going concern or like qualification or exception or (ii) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries, provided that the financial statements for any month (other than a month that is the end of a fiscal quarter) are not required to be prepared in accordance with GAAP,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section SECTION 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section SECTION 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) if and when filed by the Parent, but in any event by September 30, 2001, a copy of the certificate of merger or other applicable document filed with the Secretary of State of the State of Ohio in respect of the merger of brightwhite with and into the Parent in accordance with SECTION 6.13;
(g) promptly, but in any event within 3 Business Days after the release of any deposit materials under any agreement between DSI and any Borrower or any of their respective predecessors including, without limitation, that certain Sourceflex Software Source Code Escrow Agreement - Sourcefile Number 7470 between FileSafe, Inc. and Symix Computer Systems, Inc., notice of the release of such deposit materials,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(gi) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to AgentAgent and each Lender (but without duplication of any identical reports delivered to Wells Fargo Foothill, with copies to each Lender:as lender under the Revolving Loan Agreement):
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year or 90 days in the case of a month that is the end of the fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 no later than thirty (30) days prior to after the start end of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reportsany filings or monthly reports submitted by any Borrower to the Louisiana Regulatory Authorities or any other Gaming Authority other than such filings or monthly reports submitted in the ordinary course of business,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders in their capacities as shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) as soon as any Borrower has knowledge that the construction of the Racino Project cannot be completed by Contractor, or has knowledge that such Borrower cannot meet its obligations under any construction documents (including, without limitation, the Fixed Price Contract), notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto,
(h) as soon as any Borrower has knowledge thereof, notice of any proposed legislation or administrative action specifically affecting any Borrower's gaming activities or the Racino Project submitted to the floor for business before any Governmental Authority in the state of Louisiana (including the state legislature or any committee thereof), and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Old Evangeline Downs LLC)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andand -45-
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with ------------------------------------------- copies to each Lender:
(a) as soon as available, but in any event within 30 45 days (45 60 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, sheet and income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period, on both a consolidated and consolidating basis for Parent, its Subsidiaries and the Domestic Business Unit, in form and substance reasonably satisfactory to Agent,
(ii) a company prepared statement of cash flow, covering operations on a year to date basis, on a consolidated basis for Parent in form and substance reasonably satisfactory to Agent,
(iii) a certificate signed by the chief executive officer, president, chief financial officer officer, treasurer or controller of Parent Administrative Borrower to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section ------- 7.20, andand ----
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's fiscal years,
(i) , financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within at least 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, for the Parent and the Domestic Business Unit, in each case certified by the chief executive officer, president, chief financial officer officer, treasurer or controller of Parent Administrative Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower, within five days of such filing,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, within five days of the later of the filing or such request, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly upon any Borrower obtaining knowledge thereof, notice of any price decrease (without consideration of price protection agreements) established by any Material Vendor, affecting the value of Eligible Inventory included in the Borrowing Base by more than 5%,
(h) promptly upon the Parent obtaining knowledge or notice thereof, notice of any demand for payment pursuant to the Parent's guarantee of trade payables and real property operating leases of any Foreign Subsidiary,
(i) promptly upon the Parent obtaining knowledge or notice thereof, notice of any default, event of default, or request for payment from Parent pursuant to any Permitted Foreign Subsidiary Credit Facility that Parent has guaranteed, and
(j) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent, other than certain Foreign Subsidiaries, but only to the extent such Foreign Subsidiary's jurisdiction of organization requires a different fiscal year by law. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request, provided, however, that -------- ------- Administrative Borrower will be provided with reasonable notice of the time and place for such communication and have the opportunity to be present during such communication. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Parent and Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Parent or Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.21, and
(b) as soon as available, but in any event within 90 105 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.21,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, on a yearly and month by monthmonth basis, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as either Parent or a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Parent or Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Parent or Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree Parent and each Borrower agrees that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Parent or Borrowers that Agent reasonably may request. Each Parent and each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year or 90 days in the case of a month that is the end of the fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 no later than thirty (30) days prior to after the start end of each of the Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reportsany filings or monthly reports submitted by any Borrower to the Louisiana Regulatory Authorities or any other Gaming Authority other than such filings or monthly reports submitted in the ordinary course of business,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders in their capacities as shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) as soon as any Borrower has knowledge that the construction of the Racino Project cannot be completed by Contractor, or has knowledge that such Borrower cannot meet its obligations under any construction documents (including, without limitation, the Fixed Price Contract), notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto,
(h) as soon as any Borrower has knowledge thereof, notice of any proposed legislation or administrative action specifically affecting any Borrower's gaming activities or the Racino Project submitted to the floor for business before any Governmental Authority in the state of Louisiana (including the state legislature or any committee thereof),
(i) upon the delivery of any updated Enterprise Valuation and on each date monthly financial statements required pursuant to clause (a) above are delivered, a detailed calculation of the Borrowing Base; and
(j) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Peninsula Gaming Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal yearquarter) after the end of each month during each of Parent's fiscal yearsFiscal Year,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers the Loan Parties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal yearsFiscal Year,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal yearFiscal Year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a consolidated balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.20 (other than under Section 7.20(d)),
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal yearsFiscal Year,
(i) copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole reasonable discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal yearFiscal Year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerLoan party,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower such Loan Party with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' such Loan Party's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent such Loan Party to its shareholders generally,
(e) if and when filed by any Borrower Loan Party and as requested by Agent, reasonably satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower Loan Party conducts business or is required to pay any such excise tax, (ii) where any BorrowerLoan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerLoan Party, or (iii) where any BorrowerLoan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could reasonably be expected to result in a Material Adverse Change,
(i) promptly after receipt or delivery thereof, copies of any material notices that any Loan Party receives from or sends to any Person in connection with the Indenture Documents, and (ii) within 2 days of the effective date thereof, any amendments, modifications, waivers or other changes to any of the Indenture Documents,
(h) as soon as a Borrower any Loan Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers the Loan Parties propose to take with respect thereto,
(i) (i) promptly and in any event (A) within 10 Business Days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Benefit Plan has occurred, (B) within 10 Business Days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 Business Days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC or the equivalent provision under Canadian Employee Benefit Laws with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate propose to take with respect thereto, (ii) promptly and in any event within 3 Business Days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (iii) promptly and in any event within 10 Business Days after the filing thereof with the Internal Revenue Service if requested by Agent, copies of each Schedule B (Actuarial Information) or the Canadian equivalent thereof to the annual report (Form 5500 Series) or the Canadian equivalent thereof with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 Business Days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the IRC or the equivalent provision under Canadian Employee Benefit Laws has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or the equivalent provision under Canadian Employee Benefit Laws or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA or the equivalent provision under Canadian Employee Benefit Laws, and (vi) promptly and in any event within 10 Business Days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by any Loan Party or any ERISA Affiliate thereof,
(j) as soon as available and in any event within 45 days after the end of each fiscal quarter during each Fiscal Year,
(i) reports in form and detail reasonably satisfactory to Agent and certified by the chief financial officer of the Administrative Borrower as being accurate and complete with respect to the Rolling Stock of the Loan Parties, together with a certificate setting forth, as of the end of the previous fiscal quarter and for the portion of the Fiscal Year then ended, (A) a summary report of the Rolling Stock of the Loan Parties, indicating changes in value and depreciation amounts, (B) a list of Rolling Stock of the Loan Parties purchased or otherwise acquired during such period, setting forth the following information: the date of acquisition, the manufacturer, the year made, the model, the vehicle identification number, the state in which it is licensed, the license number, the owner, the state in which it is titled and the certificate of title or ownership identification number, together with a copy of the invoice, purchase order, registration or other document setting forth the vehicle identification number of such vehicle, which list shall supplement and update Schedule 3.2(b), (C) a list of Rolling Stock of the Loan Parties sold or contracted for sale during such period, (D) the Dollar amount spent on such purchases or acquisitions during such period, and (E) any other information relating to the Rolling Stock as Agent may reasonably request, and
(ii) the originals of all certificates of title or ownership of Rolling Stock of the Loan Parties purchased, acquired or otherwise obtained during such period, together with duly executed and completed title or ownership applications with appropriate state agencies to enable such Rolling Stock to be retitled with Agent listed as a lienholder thereof; and
(k) promptly, but in any event within 10 Business Days after the occurrence thereof, notice of (i) any sale by any Loan Party of any overdue Accounts for collection purposes, (ii) any disposition by any Loan Party constituting a Permitted Disposition under clause (f) of the definition thereof, (iii) any Investment by any Loan Party constituting a Permitted Investment under clause (g) of the definition thereof, (iv) any incurrence by any Loan Party of Permitted Purchase Money Indebtedness, (v) any incurrence by any Loan Party of Indebtedness permitted by Section 7.1(i), and (vi) any repurchase by any Loan Party of Parent's Stock pursuant to Section 7.11(c)(ii).
(gl) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Parent and its Subsidiaries. In addition to the financial statements referred to above, Parent and Borrowers agree to deliver annual unaudited financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrowerthe Parent, will have a fiscal year different from that of Parent. Parent and Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers the Loan Parties that Agent reasonably may request. Each Parent and each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower's fiscal quarters in a fiscal yearquarters) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Borrower's and Parent's and its Subsidiaries' operations during such period,
(ii) a certificate Compliance Certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarterly and year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers each Credit Party contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers the Credit Parties have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants covenant contained in Section 7.20, and7.14,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) , consolidated financial statements of Parent and its Subsidiaries (and consolidating financial statements of Parent and its Subsidiaries, to the extent produced by Parent in the normal course of its operations) for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to after the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' the Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming such fiscal year, month quarter by month, certified quarter (or by such shorter periods as are reasonably requested by the chief financial officer of Parent as being such officerAgent), which Projections shall represent Borrower's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby, it being understood that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any Projections may differ from the projected results and no assurance can be given that the Projections will be realized,
(d) if and when filed by any BorrowerParent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueSEC, and
(iviii) any other information that is provided by Parent to its shareholders generallygenerally (provided, that for purposes of this clause (d), any information to be delivered hereunder shall be deemed to have been delivered when posted on the Parent's website or otherwise made available on the website of the SEC),
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower any Credit Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose such Credit Party proposes to take with respect thereto.,
(f) within 30 days after the later of (i) the service of process with respect thereto on any Credit Party or (ii) such time as exposure of the Credit Party could be reasonably determined, notice of all actions, suits, or proceedings brought by or against any Credit Party before any Governmental Authority which, if determined adversely to such Credit Party, reasonably could be expected to result in a Material Adverse Change, and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) any Credit Parties; provided that such reports shall not be overly burdensome for any Credit Party to prepare. In addition to the financial statements referred to aboveaddition, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, Credit Party will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers any Credit Party that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Payless Shoesource Inc /De/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 45 days (45 30 days in the case of a month that is the end first month of one of the first 3 any fiscal quarters in a fiscal yearquarter) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated and consolidating balance sheet, sheet and income statement, and consolidated statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate statement signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder (except for the first month of each quarter) have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers Parent and Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Parent or Borrower has taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.19 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.19, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.19,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 2 years, year by year, and for the forthcoming fiscal year, month by month, certified accompanied by a statement from the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(i) notice of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reportsreports (if available online, no hard copies need be provided),
(ii) notice of any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower(if available online, no hard copies need be provided),
(iii) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) notice of any other information that is provided by Parent to its shareholders generallygenerally (if not available online, hard copies shall be provided),
(e) if and when filed by any Guarantor or Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Guarantor or Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Guarantor or Borrower, or (iii) where any Guarantor's or Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Parent or Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, Default notice thereof and a statement of the curative action that Borrowers Guarantors or Borrower propose to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and Borrower or any Guarantor. Parent agrees that no neither Borrower, or nor any Subsidiary of a BorrowerParent, will have a fiscal year different from that of Parent. Borrowers Parent and Borrower agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers Borrower and any Guarantor that Agent Lender reasonably may request. Each Parent and Borrower waives waive the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Paradyne Networks Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentGuitar's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its SubsidiariesBorrowers' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Administrative Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its SubsidiariesBorrowers in all material respects,
(B) the representations and warranties of Borrowers each Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and.
(Db) as soon as available, but in any event within 45 days after the end of each fiscal quarter during each of Guitar's fiscal years,
(i) a company prepared balance sheet, income statement, and statement of cash flow covering Borrowers' operations during such period,
(ii) a certificate signed by the chief financial officer of Administrative Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the financial condition of Borrowers in all material respects,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date),
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are no unpaid payroll taking, or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, andpropose to take with respect thereto),
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such quarter period with the applicable financial covenants contained in Section SECTION 7.20, and
(biv) a detailed calculation of the Leverage Ratio, certified as correct by the chief financial officer of Administrative Borrower, in sufficient detail as determined by Agent in its Permitted Discretion, to permit the redetermination of the applicable interest rate margins.
(c) as soon as available, but in any event within 90 105 days after the end of each of ParentGuitar's fiscal years,
(i) , financial statements of Parent and its Subsidiaries Borrowers for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent , and the Lenders stating that such accountants do not have knowledge delivery by Guitar of its Form 10-K annual report to the Lender Group within 105 days of the existence end of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by monthwhich report is otherwise in compliance with the auditors' certification requirements of this clause (c), certified by shall be deemed to satisfy the chief financial officer delivery requirement of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered therebythis clause (c),
(d) if and when filed by any BorrowerGuitar, within 5 Business Days following such filing,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Borrowers with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,SEC, and
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other material information that is provided by Parent a Borrower to its shareholders generally,
(e) if and when filed by any Borrower Borrowers and as requested by AgentAgent in the exercise of its Permitted Discretion, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any a Borrower conducts business or is required to pay any such excise tax, (ii) where any a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any such Borrower, or (iii) where any a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in would constitute a Material Adverse Change,
(f) as soon as not later than 45 days after the end of each of Guitar's fiscal quarters, a Borrower has knowledge "Same Store Sales Analysis" comparing the sales of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of each Borrower's retail locations for such fiscal quarter to the curative action that Borrowers propose to take with respect thereto.comparable period for each such retail location for the immediately preceding fiscal year; and
(g) upon the request of Agent, in the exercise of its Permitted Discretion, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree . Each Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, Obligor will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationGuitar.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters Fiscal Quarters in a fiscal yearFiscal Year) after the end of each month Fiscal Period during each of Parent's fiscal yearsFiscal Years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate Compliance Certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that Borrowers have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for complied with each month that is the date on which a financial covenant in Section 7.20 is to be tested7.21 or, a Compliance Certificate alternatively, indicating Borrowers' non-compliance with such financial covenants, and in either event demonstrating, in reasonable detail, compliance at the end calculations of such period with the applicable financial covenants contained in Section 7.20, andcovenant.
(b) as soon as available, but in any event (i) within 45 days after the end of each of the Parent's Fiscal Years, drafts of the financial statements of Parent and its Subsidiaries for each such Fiscal Year, prepared by the Parent but excluding footnote disclosure (such draft financial statements to include a balance sheet, income statement, and statement of cash flow), and (ii) within 90 days after the end of each of Parent's fiscal years,
(i) Fiscal Years, financial statements of Parent and its Subsidiaries for each such fiscal yearFiscal Year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,.
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) Fiscal Years, copies of Borrowers' ProjectionsBusiness Plan, in form and substance satisfactory to Agent in its Permitted Discretion (without limiting the foregoing each Business Plan submitted after the Closing Date shall include Parent's forecasted (i) consolidated balance sheets, (ii) consolidated profit and loss statements, and (iii) consolidated cash flow statements, in each case prepared on a basis consistent with Parent's historical financial statements and in a format similar to the Business Plan attached to this Agreement as Exhibit D-1 with such modifications as Agent may require and shall also include such supporting details and a statement of the underlying assumptions in form and detail satisfactory to Agent), for the forthcoming 2 Fiscal Years (on a year by year basis, and for the immediately following Fiscal Year on a month by month basis), in form and substance (including as to scope and underlying assumptions, which underlying assumptions shall be disclosed in writing to Agent) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by monthAgent and, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered therebythereby (it being understood that Agent may in its Permitted Discretion, but shall not be under any obligation to, revise the covenants set forth in Section 7.21 as a result of its review of such Business Plans and/or create or expand Reserves),
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) together with each Compliance Certificate delivered to Agent pursuant to Section 6.3(a) preceding with respect to the last Fiscal Period of a Fiscal Quarter, a certified schedule describing any additional trademarks and copyrights that have been registered by any Borrower or any Guarantor during the period since the last such schedule (or the execution of this Agreement) delivered to Agent hereunder, which description shall be sufficient for Agent to supplement its Copyright Security Agreement and Trademark Security Agreements delivered on the Closing Date, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, Borrower or any Subsidiary of a Borrower, Borrower will have a fiscal year Fiscal Year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with ------------------------------------------- copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated and consolidating balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Parent and Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Parent, SK or Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in -73- reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andand ------------
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a consolidated balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management), and accompanied by a consolidating balance sheet of Parent and its Subsidiaries prepared by Parent,
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,, ------------
(c) as soon as available, but in any event within 30 60 days prior to after the start of each of Parent's fiscal years,
(i) copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 2 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
Parent, (i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a an internal company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes footnotes, adjustments for promotional allowances and cash rebates and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers and Guarantors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers and Guarantors have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by together with an Officer's Certificate of the chief financial officer of Parent as being that such Projections are such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerBorrower or any Guarantor,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower or Guarantor and as requested by AgentAgent in its Permitted Discretion, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower or Guarantor conducts business or is required to pay any such excise tax, (ii) where any Borrower's or Guarantor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerBorrower or Guarantor, or (iii) where any Borrower's or Guarantor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower or a Guarantor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers and Guarantors propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested report, relating to the financial condition of Borrowers.
(h) Borrowers and Guarantors, requested by Agent in its Permitted Discretion. In addition to the financial statements referred to above, Borrowers and Guarantors agree to deliver financial statements prepared on both a consolidated and consolidating basis (consolidating as to be determined prior entity and as to geographic gaming market segment (i.e., each Facility plus, for this purpose, the Activation Date management division)) and that no Borrower, or any Restricted Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers and Guarantors agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Borrower or Guarantor that Agent reasonably may request. Each Borrower of the Borrowers and Guarantors waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Riviera Holdings Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, ------------------------------------------- with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, sheet and income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.19 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.19, and------------
(b) as soon as available, but in any event within 45 days (or 90 days in the case of the fourth fiscal quarter in a fiscal year) after the end of each fiscal quarter during each of Parent's fiscal years, a company prepared statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(c) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,7.19, ------------
(cd) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in the form delivered to Agent on or before the Closing Date and in substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(de) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueSEC, and
(iviii) any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by any Borrower and as requested by Agent, reasonably satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) upon the request of Agent, copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(h) within 5 Business Days of receipt thereof, copies of any notices delivered to Parent or any of its Subsidiaries indicating any liability or potential liability under the Tax Sharing Agreement or the Distribution Agreement,
(i) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(gj) as soon as available but in any event within 10 days of the date of (i) any change in the information contained in Schedules 5.6(c), 5.14 and 5.16 to this Agreement or (ii) any facts or circumstances that would require a change in Schedules 5.6(c), 5.14 and 5.16 to this Agreement if such facts or circumstances had occurred on or before the date of this Agreement, notice of such change in information, facts or circumstances, and
(k) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days (or such lesser number of days as may be required pursuant to the Exchange Act) in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated and consolidating (based on internal management reports) balance sheet, income statementstatement (including cash interest), and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the consolidated financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers the Loan Parties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers the Loan Parties have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days (or such lesser number of days as may be required pursuant to the Exchange Act) after the end of each of Parent's fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including, without limitation, (A) any going concern or like qualification or exception or (B) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days on or prior to the start last day of each of Parent's fiscal years,
(i) Fiscal Year, copies of Borrowersthe Loan Parties' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal yearnext Fiscal Year, month by month, certified by the chief financial officer of Parent an Authorized Person as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries the Loan Parties during the period covered thereby,, and
(d) if and when filed by any BorrowerLoan Party,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Loan Party with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of BorrowersLoan Parties' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which jurisdictions (i) in which any Borrower Loan Party conducts business or is required to pay any such excise tax, (ii) where any BorrowerLoan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any BorrowerLoan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower Loan Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers such Loan Party proposes to take with respect thereto,
(g) (i) promptly and in any event (A) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Benefit Plan has occurred, (B) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate propose to take with respect thereto., (ii) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (iii) promptly and in any event within 10 days after the filing thereof with the Internal Revenue Service if requested by Agent, copies of each Schedule B (Actuarial Information) or the federal, state, local or foreign equivalent thereof to the annual report (Form 5500 Series) or the federal, state, local or foreign equivalent thereof with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof, and (vi) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by any Loan Party or any ERISA Affiliate thereof,
(gh) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to aboveLoan Parties, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.and
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) an inventory certificate, and
(iii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto),
D. all rent and additional rent due pursuant to any store lease have or have not been paid (and if not paid, andbroken down by store location); PROVIDED, HOWEVER, that Borrowers need not report unpaid additional rent based on year end adjustments for common area expenses to the extent such additional rent is disputed by such Borrower, and E. premiums for insurance required under SECTION 6.9 hereof have or have not been paid.
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 SECTION 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20SECTION 7.21, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20SECTION 7.21,
(c) as soon as available, but in any event within 30 days prior to after the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,, 66
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) At such times and with such frequency as is requested by Agent, such information and documentation as is determined by Agent to be appropriate based upon Agent's review and analysis of the Accounts and the information and documentation from time to time available to Agent,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(gh) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers., and
(hi) cause any guarantor of any of the Obligations to deliver its annual financial statements at the time when Borrower provides its audited financial statements to Agent and copies of all federal income tax returns as soon as the same are available and in any event no later than 30 days after the same are required to be filed by law. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information. Agent hereby agrees to use its best efforts to give such Borrower at least simultaneous notice that Agent is so contacting directly any such accounting firm or service bureau.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 three (3) fiscal quarters in a fiscal year) after the end of each month during each of Parent's Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's Borrower’s fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's Borrower’s fiscal years,
(i) copies of Borrowers' Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 three (3) years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) within 5 days after the end of each month, evidence satisfactory to Lender that all amounts owed by Borrower under the PNC Lease for the immediately preceding month shall have been paid in full by Borrower,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(gh) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' the operations of the Borrower Parties during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,the Borrower Parties;
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are were true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date Closing Date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties were true and correct on and as of such earlier date), ; and
(C) there does not exist any condition or event that constitutes a Default, Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are taking, is taking or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and;
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries the Borrower Parties for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualification (including, without limitation, (A) any going concern or like qualification or exception or (B) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,;
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,;
(d) if and when filed by any Borrower,
(i) 10-Q quarterly all prospectuses, material change reports, Form 10-K annual reports, press releases and Form 8-K current reports,other documents as required to be filed with any securities commission from time to time having jurisdiction over the Borrower;
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Canada Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueAgency, and
(iviii) any other information that is provided by Parent Borrower to its shareholders generally,shareholders;
(e) if and when filed by any Borrower Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any such Borrower Party conducts business or is required to pay any such excise tax, (ii) where any Borrowersuch Borrower Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, such Borrower Party or (iii) where any Borrowersuch Borrower Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,;
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Borrower Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties;
(g) promptly after the commencement thereof, but in any event within five (5) days after the service of process with respect thereto on any Borrower Party, notice of all actions, suits or proceedings brought by or against any Borrower Party before any Governmental Authority which, if determined adversely to such Borrower Party, could result in a Material Adverse Change;
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Unmatured Default or Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.; and
(gi) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) any of the Borrower Parties. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public chartered accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers the Borrower Parties that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:: -41- 48
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower and Canadian Subsidiary contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(iv) within 30 days after the end of each fiscal quarter during each of Borrower's fiscal years, a Compliance Certificate setting forth, in reasonable detail, the Twelve Month Trailing EBITDA, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender (and Ernst & Young and any other nationally recognized public accounting firm shall be deemed reasonably acceptable to Lender) and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20Sections 7.20(a) and 7.20(b),
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and form, substance (including as to scope and underlying assumptions) satisfactory and detail comparable to Agent, in its sole discretion, Projections either previously delivered to Lender and/or otherwise reasonably acceptable to Lender for the forthcoming 3 three years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower, and to the extent not already delivered,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower and Canadian Subsidiary. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
Foothill: (a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's Borrowers' fiscal years,
(i) , a company prepared consolidated and consolidating balance sheet, income statement, and statement of cash flow covering Parent's and its SubsidiariesBorrowers' operations during such period,
, provided, however, that the first month with respect to which Borrowers shall provide such statement of cash flow shall be for Borrowers' operations during the month of July, 2000; (iib) as soon as available, but in any event within (forty-five) (45) days of each June 30, Each month, together with the financial statements provided pursuant to Section 6.3(a) and (b), Borrowers shall deliver to Foothill a certificate signed by the chief financial officer of Parent to the effect that:
: (Ai) the all financial statements delivered or caused to be delivered to Foothill hereunder have been prepared in accordance with GAAP (except except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
Borrowers, (Bii) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(Ciii) for each month that also is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating in reasonable detail compliance at the end of such period with the applicable financial covenants contained in Section 7.20, (iv) for each month in which any Borrower proposes to make any Intercompany Loans, a Solvency Certificate certifying that each of such Borrower and the Borrower or Guarantor to whom such Borrower proposes to make such Intercompany Loan is Solvent (except as otherwise expressly permitted pursuant to Section 7.13) as of the end of the immediately preceding month; and (v) on the date of delivery of such certificate to Foothill there does not exist any condition or event that constitutes a Default or Event of Default (or, in the case of clauses (i), (ii), or (iii), to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that . Borrowers shall have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is issued written instructions to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized authorizing them to communicate with Agent Foothill and to release to Agent Foothill whatever financial information concerning Borrowers that Agent reasonably Foothill may request. Each Borrower waives the right Borrowers hereby irrevocably authorize and direct all auditors, accountants, or other third parties to assert a confidential relationshipdeliver to Foothill, if anyat Borrowers' expense, it copies of Borrowers' financial statements, papers related thereto, and other accounting records of any nature in its possession, and to disclose to Foothill any information they may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, regarding Borrowers' business affairs and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationfinancial conditions.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 45 days after the end of each fiscal quarter (other than the last fiscal quarter of each fiscal year) during each of Parent's fiscal years (provided, that if and when Parent's systems are able to generate monthly financials, Parent shall deliver such monthly financials within 30 days (45 days in the case of a month that is the end of one of the first 3 three (3) fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years),
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have -63- knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date end of a fiscal quarter on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' ProjectionsOperating Budget, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to AgentLender, in its sole discretionPermitted Discretion, for the forthcoming 3 three (3) years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service (or, if applicable, Borrowers' tax returns filed with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenuethe United Kingdom tax authorities), and
(ive) if and when provided, any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(gh) as soon as available, but in any event within 15 days after the end of each month during each of Parent's fiscal years, a monthly flash report detailing Parent's revenues for each such month, and
(i) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidating and consolidated balance sheet, sheet and income statement, and statement covering operations of cash flow covering Parent's Parent and its Subsidiaries' operations Subsidiaries during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Parent and Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties expressly relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Parent and Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate 73 75 demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(iv) a statement of intercompany balances between Borrowers, andon the one hand and each of Parent, Hypercom Asia Group, Hypercom Brazil and Golden Eagle, on the other hand, for such period and a statement of cash outstanding for each such Person as of the end of such period,
(v) a monthly cash forecast for Parent and its Subsidiaries,
(b) as soon as available, but in any event within 45 days after the end of each fiscal quarter a company prepared consolidated statement of cash flow covering operations of Parent and its Subsidiaries during such period,
(c) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) , financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including, without limitation, (i) any "going concern" or like qualification or exception, or (ii) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(cd) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of Projections for Parent and Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(de) if and when filed by Parent or any Borrower,
(i) 10-Q or 10-QSB quarterly reports, Form 10-K or 10-KSB annual reports, and Form 8-K or 8-KSB current reports,
(ii) any other filings made by Parent or any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Parent's or Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service orService, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
and 74 76 (iv) any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by Parent or any Borrower and as reasonably requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which which
(i) Parent or any Borrower conducts business or is required to pay any such excise tax, ,
(ii) where Parent's or any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Parent or any Borrower, or or
(iii) where unless such taxes are the subject of a Permitted Protest,
(g) promptly after the commencement thereof, but in any Borrower's failure event within 5 days after the service of process with respect thereto on any Borrower or any Guarantor, notice of all actions, suits or proceedings brought by or against any Borrower or any Guarantor before any Governmental Authority which, if determined adversely to pay any such applicable excise tax Borrower or Guarantor, could reasonably could be expected to result in cause a Material Adverse Change,
(fh) as soon as Parent or a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Parent or Borrowers propose to take with respect thereto., and
(gi) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) any Borrower or any Guarantor. In addition to the financial statements referred to above, Parent and Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 by no later than the earlier of (y) five (5) days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each month during each of Parent's ’s first three (3) fiscal yearsquarters of each fiscal year,
(i) a company prepared consolidated balance sheet, sheet and income statement, and statement covering the operations of cash flow covering Parent's Parent and its Subsidiaries' operations direct and indirect Subsidiaries during such periodperiod and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a certificate Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Parent to the effect Borrower certifying that:
(A1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries,
(B) , and demonstrating the representations and warranties of Borrowers contained in this Agreement and compliance by Parent on a consolidated basis at the other Loan Documents are true and correct in all material respects on and as of the date end of such certificate, as though made on and as of such date (except quarter with all financial covenants required to the extent that such representations and warranties relate solely to an earlier date)be tested hereunder, and
(C2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have the applicable Obligated Party has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 by no later than the earlier of (y) five (5) days after the end date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent's ’s fiscal years,
(i) , consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender in Lender’s Permitted Discretion and certified, without any qualificationsqualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such audited fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements to include be reported on without a balance sheet“going concern” or like qualification or exception, income statementor qualification arising out of the scope of the audit), and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) together with a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default under Section 7.20or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event within 30 by no later than the earlier of (y) five (5) days prior to after the start date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent's ’s fiscal years,
(i) , copies of Borrowers' Projections, in form and substance Projections for such fiscal year (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionincluding, for the forthcoming 3 yearsavoidance of doubt, year by yearthe 2016 Projections to be delivered on or before March 30, and for the forthcoming fiscal year2016), month by month, all as certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by promptly, but in any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which event within five (i5) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose the applicable Obligated Party proposes to take with respect thereto.,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of AgentLender, any other report information reasonably requested relating to the financial condition of Borrowersany Obligated Party.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 50 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, ; and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when within 5 days of the date filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) no later than 5 days prior to payment of each semi-annual interest payment required under the Debentures, a certificate signed by the chief financial officer of Parent indicating Parent's election as to whether to pay such interest in cash or Stock of Parent, and if Parent elects to pay in cash, that, after making and giving effect to such payment, Borrowers shall be in compliance with the covenant set forth in section (c) of Schedule 7.20, and
(h) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . "In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
(i) as soon as Borrower receives notice of conversion for the Debentures or a request to register the shares underlying the Debentures by the holders thereof pursuant to the Debenture Documents, notice thereof and a statement of the dates when conversion of such Debentures or registration of the shares underlying such Debentures are due."
1.12 The following is added as a new Section 6.16:
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 35 days (45 60 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer or President of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and,
(D) there does not exist any event of default under any aircraft lease agreement for any reason,
(E) Borrowers are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor in compliance with insurance coverage requirements set forth Section 6.8, and
(F) World Parts is the owner of all the Borrowers' Inventory constituting spare parts (except as may be otherwise disclosed to Agent on a schedule attached thereto which details the owner and stating the accrued amount serial number of unpaid payroll and payroll taxes that have each item of Inventory constituting spare parts not yet become dueowned by World Parts), and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 100 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, remaining months of the then current fiscal year by year, and for the forthcoming fiscal next succeeding year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) as soon as a Borrower has knowledge thereof, notice that
(i) aggregate revenues from sales to Air Mobility Command for the succeeding twelve month period may decrease by an amount equal to or greater than twenty percent (20%) with respect to Accounts owed by Air Mobility Command during the immediately preceding twelve month period,
(ii) an event of default exists under any aircraft lease agreement,
(iii) an aircraft crash has occurred,
(iv) a claim of $1,000,000 or greater has been filed in any court or proceeding, or is anticipated to be filed, against Borrowers, or either of them, for whatever reason, or
(v) the terms and conditions governing the employment of Borrowers' unionized employees no longer prohibit any of Borrowers' unionized employees from striking or taking other labor-related action with respect to services provided by Parent pursuant to the Air Mobility Command Agreement, and
(h) in the event of any disposition of Inventory by any consignee of such Inventory, notice of such disposition, including the serial number, part number and location of all Inventory disposed of by such consignee; and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (World Airways Inc /De/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent’s fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's ’s fiscal years,years and beginning with the fourth full month ended following the Closing Date (provided, that Borrowers shall deliver a draft income statement, subject to fresh-start accounting adjustments, and a schedule of capital expenditures for such period on or before the date that is 30 days following the third full month ending immediately following the Closing Date):
(i) a company prepared consolidated and consolidating balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition on a consolidated basis of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) and C. as of the date of such certificate, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.18(c) and, andfor each month that is the date on which a financial covenant in Section 7.18(a) or Section 7.18(b) is to be tested, compliance with the financial covenants set forth therein and certifying that Borrowers and their Subsidiaries have not opened or closed any Deposit Account or Securities Account that has not been reported to the Agent in writing.
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's ’s fiscal years,
(i) , financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's ’s fiscal years,
(i) , copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby, based upon assumptions believed by Borrowers to be reasonable at the time of delivery thereof to Agent (it being understood that such Projections are subject to uncertainties and contingencies, many of which are beyond the control of Borrowers and their Subsidiaries and are not to be viewed as facts, that no assurances can be given that such Projections will be realized, and that actual results may differ in a material manner from such Projections),
(d) if and when filed by any BorrowerBorrower (if ever),
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,, provided that, for the avoidance of doubt, it is understood and agreed that neither the Parent, Borrowers nor any of their respective Subsidiaries shall have any obligation under this Agreement to file quarterly reports under Form 10-Q, annual reports under Form 10-K or current reports under Form 8-K with the SEC.
(e) if and when filed by any Borrower or any Subsidiary of a Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Subsidiary of a Borrower's ’s failure to pay any such applicable excise tax (i) would result in a Lien on the properties or assets of any Borrower, such Borrower or such Subsidiary or (iiiii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Borrower or any Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change,
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.Borrowers or their Subsidiaries,
(hi) as soon as available, but in any event within three (3) Business Days after the end of each week during each of Parent’s fiscal years, a report detailing the balances and location of cash and Cash Equivalents, including, without limitation Cage Cash;
(j) no later than 10 Business Days prior to the making of any Permitted Indenture Payments of the types described in clauses (b) or (c) of the definition thereof set forth in the Intercreditor Agreement (an “Interest Payment” and “Principal Payment”, respectively and, such payments collectively, the “Subject Permitted Indenture Payments”) Parent shall prepare and deliver to Agent a certificate (a “Subject Permitted Indenture Payment Certificate”) reasonably acceptable to Agent setting forth, all in reasonable detail, (i) in the case of an Interest Payment, the calculation of amount of such Interest Payment to be made and calculations and other evidence establishing whether the matters set forth in clauses (ii) and (iii) of clause (b) of the definition of Permitted Indenture Payments have been satisfied and (ii) in the case of a Principal Payment, the calculation of amount of such Principal Payment to be made and calculations and other evidence establishing whether the matters set forth in clauses (ii) and (iii) of clause (c) of the definition of Permitted Indenture Payments have been satisfied (provided that, in each such case (x) the then applicable TTM EBITDA (as defined in the Intercreditor Agreement) shall be deemed to be that set forth in the most recent calculations delivered to Agent pursuant to the last paragraph of Section 6.3 and (y) the Operating Liquidity information shall be based on the Parents projected Operating Liquidity as of such time after giving pro forma effect to any such Subject Permitted Indenture Payment, it being understood that such projected Operating Liquidity is subject to uncertainties and contingencies, many of which are beyond the control of Borrowers and their Subsidiaries and are not to be viewed as facts, that no assurances can be given that such projections will be realized, and that actual results may differ in a material manner from such projections). Agent shall approve or disapprove a Subject Permitted Indenture Payment Certificate in writing to the Parent within 5 Business Days of delivery thereof (such approval not to be unreasonably withheld, conditioned or delayed), but in any event failure of Agent to explicitly approve or disapprove a Subject Permitted Indenture Payment Certificate within the above described time period shall be deemed an approval of such Subject Permitted Indenture Payment Certificate. If the Agent disapproves a Subject Permitted Indenture Payment Certificate, the Agent shall notify Parent and detail the items that are disapproved and the reason for such disapproval. Parent shall be entitled to revise any such Subject Permitted Indenture Payment Certificate and deliver such revised Subject Permitted Indenture Payment Certificate to the Agent, whereupon the provisions of this Section 6.3(j) shall apply except that the Agent’s 5 Business Day review period provided herein shall be reduced to 2 Business Days. For the avoidance of doubt, under no circumstances shall Agent’s approval of any Permitted Indenture Payment Certificate be deemed to approve any Subject Permitted Indenture Payment that is not permitted under the terms and conditions of the Intercreditor Agreement. In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared to Agent within 30 days of the end of each month, Parent’s calculation of its EBITDA for such month and for the twelve month period ending on the last day of such month and a basis calculation of the Revolver Commitments and Excess Availability, including a calculation of the Senior Leverage Ratio as of such date of determination, in each case subject to be determined prior to the Activation Date quarterly review and year-end audit adjustments. Parent agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section SECTION 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including, without limitation, (A) any going concern or like qualification or exception or (B) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section SECTION 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower such Loan Party conducts business or is required to pay any such excise tax, (ii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Loan Party, or (iii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties,
(g) promptly after the commencement thereof, but in any event within five days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gi) (i) promptly after receipt or delivery thereof, copies of any material notices that any Loan Party receives from or sends to any Person in connection with the New Notes Documents or the PrimeWest Agreement and (ii) at least 3 Business Days prior to the effective date thereof, any amendments, modifications, waivers or other changes to any of the New Notes Documents or the PrimeWest Agreement, and
(j) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or any of its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Abraxas Petroleum Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower's fiscal quarters in a fiscal yearquarters) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its the Restricted Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement Borrower and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date)Restricted Subsidiaries, and
(CB) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) , consolidated and consolidating financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower or its Subsidiaries and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any Borrower's or its Subsidiaries' failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerBorrower or its Subsidiaries, or (iii) where any Borrower's or its Subsidiaries' failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change,
(h) promptly after receipt thereof, any notices, complaints, orders, or other communications from the U.S. Food and Drug Administration with respect to any material violation of or non-compliance with regulations applicable to Borrower or its Subsidiaries or permits or licenses held by Borrower or its Subsidiaries, and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower or its Subsidiaries Agent reasonably may request. Each , provided , in all cases, that Borrower waives shall have received notice of any such proposed consultation and have the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any be present at such accounting firm or service bureau in order to obtain such informationconsultation.
Appears in 1 contract
Sources: Loan and Security Agreement (Hudson Respiratory Care Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and including, without limitation, a representation that all required payments by the Borrower on account of all Benefit Plans have been timely made, and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's Borrower’s fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications (other than existing Table of Contents going concern qualifications), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate all actuarial reports and analyses with respect to all Benefit Plans and, (without requiring the following filings within 90 days of such accountants addressed the end of each of Borrower’s fiscal years) within ten (10) days of Borrower’s receipt or execution thereof, any Form 5500 or other governmental filing on account of any Benefit Plan,
(iii) appraisals of the Real Property Collateral, in form and substance satisfactory to Agent, from an appraiser satisfactory to Agent, and which state that Agent and the Lenders stating that are entitled to rely on such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20appraisals,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's Borrower’s fiscal years,
(i) copies of Borrowers' Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower or any Borrower Guarantor with the SEC SEC, any national securities exchange or the National Association of Securities Dealers, Inc. or filed with or sent to the Subordinated Indenture Trustee or to any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,holder of Subordinated Notes, and
(iii) copies of Borrowers' Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,Service.
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,, Table of Contents
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) upon Agent’s request, Borrower shall, at its expense, no more than twice in each calendar year, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent written appraisals as to the Inventory and Equipment in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiariesthe CPI Parties' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiariesthe CPI Parties,
(B) the representations and warranties of Borrowers Obligors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 45 days after the end of each fiscal quarter of Borrower's fiscal year, commencing with the first fiscal quarter of Borrower's fiscal quarter 2002, a certificate signed by the chief financial officer of Borrower, setting forth in reasonable detail the computation of EBITDA and the Debt Coverage Ratio for the immediately preceding fiscal quarter,
(c) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) consolidated and, if available, consolidating, financial statements of Parent and its Subsidiaries the CPI Parties for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(cd) as soon as available, but in any event within 30 days prior to after the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' the Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole reasonable discretion, for the forthcoming 3 2 years, year by year, and year (for the forthcoming fiscal year, month by month, and on a quarter to quarter basis for the second year) , certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Obligors during the period covered thereby,
(de) if and when filed by any BorrowerObligor,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Obligor with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of BorrowersObligors' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent any Obligor to its shareholders generally,
(ef) if and when filed by any Borrower Obligor and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower such Obligor conducts business or is required to pay any such excise tax, (ii) where any Borrowersuch Obligor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Obligor, or (iii) where any Borrowersuch Obligor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) as soon as a Borrower any Obligor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gh) a report on all actions upon which Borrower is required to report to Lender pursuant to Section 5.16 or the Intellectual Property Security Agreement, and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and Obligors. Each Obligor agrees that no Borrower, or any Subsidiary of a Borrower, CPI Party will have a fiscal year different from that of ParentBorrower. Borrowers agree that their independent At the request of Agent, Borrower shall, from time to time, cause its certified public accountants are authorized to communicate meet and confer with Agent Agent's representatives, in the presence of Borrower's management, to discuss with Agent's representatives the financial and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives business affairs of the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationCPI Parties.
Appears in 1 contract
Sources: Loan and Security Agreement (Communications & Power Industries Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower's fiscal quarters in a fiscal yearquarters) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate Compliance Certificate signed by the chief financial officer or VP of Parent Finance of Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) , financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationswith only such qualifications as may be satisfactory to Agent in its sole discretion, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 10 days prior to after the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer or VP of Parent Finance of Borrower as being such officer's prepared in good faith best estimate based on assumptions believed to be reasonable at the time of the financial performance of Parent and its Subsidiaries during the period covered therebypreparation thereof,
(d) if and when filed by any BorrowerBorrower (or promptly thereafter),
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, and any other filings made by Borrower with the SEC, it being understood that, as to any such filings, Borrower may deliver the same by electronic mail (to such email address(es) as may be provided for such purpose from time to time by Agent), including any such electronic mail specifying the applicable filing,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iviii) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested upon request by Agent, satisfactory evidence of payment payment, and extent of nonpayment (if applicable), by Borrower and its Subsidiaries of applicable excise taxes in each jurisdiction in which (i) any Borrower or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any Borrower's or its Subsidiaries' failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerBorrower or its Subsidiaries, or (iii) where any Borrower's or its Subsidiaries' failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) with respect to any month for which Borrowing Base Availability at any time during such month is less than $20,000,000, a certification, on a best knowledge basis, in the applicable Compliance Certificate for such month, indicating, as soon as a to Borrower and its Subsidiaries, the payment, and extent of nonpayment (if applicable), of (i) all sales taxes (but not use taxes) required to be paid during such month (and describing any applicable Permitted Protest relating thereto), and (ii) all lease payments required to be paid during such month (and describing any applicable Permitted Protest relating thereto), in each case whether or not constituting an Event of Default hereunder,
(g) promptly after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gh) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees (if and when it has any Subsidiaries) to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower an opportunity to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower or its Subsidiaries Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer or chief executive officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its Subsidiaries,
(B) B. to the best of his knowledge, the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. to the best of his knowledge, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's ’s fiscal third quarters and fiscal years,
(i) copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 three (3) years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer or chief executive officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,SEC, and
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service (or, if applicable, Borrowers’ tax returns filed with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, andthe United Kingdom tax authorities),
(ive) if and when provided, any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(gh) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and, with respect to all periods after the month ended March 31, 2003, consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Mercator Software Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(ia) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's 's, its Subsidiaries' and its the Excluded Subsidiaries' operations during such period,
(iib) a certificate signed by the chief financial officer and chief executive officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Parent, its Subsidiaries, and its the Excluded Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiic) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(ia) consolidated financial statements of Parent and Parent, its Subsidiaries and the Excluded Subsidiaries, for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(iib) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days 5 Business Days prior to the start of each of Parent's fiscal years,
(ia) copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent Parent, its respective Subsidiaries and its the Excluded Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(ia) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(iib) any other filings reports made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iiic) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(ivd) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements for Borrowers and Parent prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, or any Excluded Subsidiary will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each the Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,month:
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow (on a consolidated and consolidating basis) covering Parent's and its Subsidiariesthe Borrowers' operations during such periodperiod (except that the company prepared statement of cash flow on a consolidating basis shall be delivered within 30 days after the end of each calendar quarter rather than on a monthly basis),
(ii) a certificate signed by the chief financial officer of Parent the Administrative Borrower to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Borrowers (on a consolidated and its Subsidiariesconsolidating basis),
(B) B. the representations and warranties of the Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have each Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 SECTION 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance certificate demonstrating compliance at the end of such period with the applicable financial covenants contained in Section 7.20SECTION 7.18, and
(b) as soon as available, but in any event within 90 120 days after the end of each of Parentthe Administrative Borrower's fiscal years,
(i) financial statements of Parent the Borrowers (on a consolidated and its Subsidiaries consolidating basis) for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent the Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20with respect to noncompliance with SECTION 7.18,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parentthe Administrative Borrower's fiscal years,
(i) , copies of the Borrowers' ProjectionsProjections (on a consolidated and consolidating basis), in form and substance (including as to scope and underlying assumptions) satisfactory to Agentthe Lender, in its sole reasonable discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent the Administrative Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries the Borrowers during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a any Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose each Borrower proposes to take with respect thereto.,
(e) by not later than 10 days after each December 31 and June 30 (and as often as the Lender requests after the occurrence, and during the continuance, of a Default or Event of Default) an up-to-date print-out that lists as of the most recent of such dates all Account Debtors of each Borrower and the current contact information (including name, address, and telephone number) for each such Account Debtor,
(f) after the occurrence, and during the continuance, of a Default or Event of Default, immediately upon the request of the Lender, copies of all outstanding contracts, agreements, purchase orders, acknowledgments, invoices, and related documents and instruments evidencing any Borrower's relationship with each of its Account Debtors, and
(g) upon the request of Agentthe Lender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and any Borrower. Each Borrower agrees that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their its independent certified public accountants are authorized to communicate with Agent the Lender and to release to Agent the Lender whatever financial information concerning the Borrowers that Agent the Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent the Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent the Lender, at any time after the occurrence of a Default or Event of Default or upon 15 days notice to the Administrative Borrower at any other time, may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to the Administrative Agent, with sufficient copies for each Lender of the following documents (or, with the consent of the Administrative Agent, the electronic equivalent of such documents) (it being understood that, absent request by the Administrative Agent for information with respect to each Lender:a particular Obligor, this covenant shall be deemed satisfied to the extent that the Borrower provides the following information for the Obligors taken as a whole):
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parentthe Borrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statementstatement of earnings, and statement of cash flow covering Parentthe Borrower's and its Subsidiaries' Subsidiaries operations during such period,
(ii) a certificate signed by the chief financial officer of Parent the Borrower on behalf of the Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and present fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have the applicable Obligor has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 6.17 is to be tested, a Compliance Certificate demonstrating, demonstrating in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.206.17, and
(iv) for each month that ends immediately prior to a Cash Flow Payment Date, a calculation of the payment required to be made by the Borrower on such Cash Flow Payment Date.
(b) as soon as available, but in any event within 90 120 days after the end of each of Parentthe Borrower's fiscal years,years that occurs after the Closing Date.
(i) consolidated financial statements of Parent the Borrower and its Subsidiaries for each such fiscal year, audited by PriceWaterhouseCoopers or other independent certified public accountants reasonably acceptable to the Administrative Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statementstatement of earnings, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to the Administrative Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.206.17,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any the Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any the Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueSEC, and
(iviii) any other information that is provided by Parent the Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(gd) upon the request of the Administrative Agent, ,
(i) any other report reasonably requested relating to the financial condition of Borrowers.
(h) the Borrower or any of the other Obligors. In addition to the financial statements referred to above, Borrowers the Borrower and the US Subsidiary Guarantors agree to deliver promptly to the Administrative Agent (with copies (or, with the consent of the Administrative Agent, the electronic equivalent thereof) for each Lender) copies of management reports, in the form historically prepared by the Borrower, that reflect the operational performance of each of the individual business segments of the Borrower and the US Subsidiary Guarantors taken as a whole. Without limiting the foregoing, the Borrower and the US Subsidiary Guarantors agree (unless and until the UK Metals Operations have been sold) that each of the financial statements to be delivered hereunder shall be prepared on a consolidated basis to be determined prior to reflecting the Activation Date financial performance of the Borrower and that no Borrower, or any its Subsidiaries (exclusive of the financial performance of the UK Metals Operations) and reflecting the UK Metals Operations. The Borrower and the US Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers Guarantors agree that their independent certified public accountants are authorized to communicate with the Administrative Agent and to release to the Administrative Agent whatever financial information concerning Borrowers the Obligors that the Administrative Agent reasonably may request. Each Borrower waives ; provided, however, that, prior to contacting such independent certified public accountants, the right to assert a confidential relationshipAdministrative Agent shall attempt, if anyin good faith, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationinformation from the Borrower and the US Subsidiary Guarantors.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) D. there are no unpaid payroll has not been any amendment, modification, alteration, increase or payroll taxes that have become due from change in any Borrower of the terms or Guarantor and stating the accrued amount conditions of unpaid payroll and payroll taxes that have not yet become dueany Material Contract, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andand -57- 63
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (SCB Computer Technology Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers Companies contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist that such Person is unaware of any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers Companies have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.21, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications as to the scope of the audit or as to going concern, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Parent (with a copy to be delivered to Agent and the Lenders Lenders) stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.21,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of BorrowersCompanies' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 three years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officerwhich Projections shall reflect management's good faith best estimate and reasonable estimates of the future financial performance of Parent and its Subsidiaries during for the period covered therebyor periods set forth therein and will be based upon estimates and assumptions stated therein, all of which Parent shall believe to be reasonable and fair in light of conditions and facts known to management of the Parent as of the date of preparation thereof (it being understood that such Projections as they relate to future events are not to be viewed as representations or warranties that such events will occur, and that actual results may differ from projected results),
(d) if and when filed by any BorrowerCompany,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other material filings made by any Borrower Company with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of BorrowersCompanies' federal income tax returns, if any, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other material information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Company and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower Company conducts business or is required to pay any such excise tax, (ii) where any BorrowerCompany's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerCompany, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.or
Appears in 1 contract
Sources: Loan and Security Agreement (Alpine Group Inc /De/)
Financial Statements, Reports, Certificates. Deliver The Company shall deliver to Agent, with copies to each Lenderthe Trustee:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parentthe Company's fiscal years,
(i) a company Company prepared consolidated Consolidated balance sheet, income statement, and statement of cash flow covering Parentthe Company's and its Subsidiaries' operations during such periodmonth and the fiscal year to date, together with a comparison of such financial statements to (A) Company's Projections (as defined in the New Credit Agreement) delivered prior to the Issue Date or pursuant to Section 4.04(c) and (B) the Consolidated balance sheet, income statement, and statement of cash flow covering Company's and its Subsidiaries' operations for such corresponding period in the immediately preceding fiscal year,
(ii) a company prepared schedule detailing Company's Consolidated EBITDA as of the end of each month for the 13-month period then ended,
(iii) a certificate signed by the a chief financial officer or a principal accounting officer of Parent the Company to the effect that:
(A) the financial statements and other financial information delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Company and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this the New Credit Agreement and the other Loan Documents (as defined in the New Credit Agreement) are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers the Note Parties have taken, are taking, or propose to take with respect thereto), ; and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 5.19 is to be tested, a Compliance Certificate (as defined in the New Credit Agreement) demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.205.19, andtogether with a reconciliation of the company prepared Consolidated balance sheet, income statement, and statement of cash flow for Company and its Subsidiaries for the 3-month period then ended to the audited financial statements contained in the 4 most recent Form 10-Q quarterly reports and the most recent Form 10-K annual report filed by Company and its Subsidiaries,
(b) as soon as available, but in any event within 90 120 days after the end of each of ParentCompany's fiscal years,
(i) Consolidated financial statements of Parent the Company and its Subsidiaries for each such fiscal year, audited by nationally recognized independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders Trustee stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.206.01,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentCompany's fiscal years,
(i) , copies of Borrowers' Projections, Company's Projections (as defined in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionthe New Credit Agreement), for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Company (i) as being such officer's good faith best estimate of the financial performance of Parent Company and its Subsidiaries on a 50 Consolidated basis during the period covered therebythereby and (ii) as being in form and substance (including as to scope and underlying assumptions) as delivered to the Bank Lenders' Agent,
(d) if if, when and when to the extent filed by any BorrowerNote Party with the SEC or any other Governmental Authority,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Note Party with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueIRS, and
(iv) any other information that is provided by Parent the Company to its shareholders generally,
(e) if and when filed by any Borrower Note Party and as if requested by AgentTrustee, reasonably satisfactory evidence of payment of applicable excise and property taxes in each jurisdiction jurisdictions in which (i) any Borrower Note Party conducts business business, owns real property or is required to pay any such excise or real property tax, (ii) where any BorrowerNote Party's failure to pay any such applicable excise or property tax would result in a Lien on the properties or assets of any BorrowerNote Party, or (iii) where any BorrowerNote Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, notice of all actions, suits or proceedings brought by or against any Note Party before any Governmental Authority that, if determined adversely to such Note Party, could reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.,
(h) as soon as a Borrower has actual knowledge of any event or condition that constitutes a default or an event of default under the New AMERCO Note Documents, the New Credit Agreement or the other Loan Documents (as defined in the New Credit Agreement), or any Funded Debt (including, without limitation, any TRAC Lease Transaction, the PMCC Like Kind Exchange Lease or the PMCC Leveraged Lease) or any notice, call, default of event of default under any Support Party Agreement, notice thereof and a statement of the curative action that Borrowers or Guarantors, as applicable, propose to take with respect thereto,
(i) such information as may, from time to time, be necessary to comply with any applicable provision of TIA Section 314(a), and
(j) such information provided to the Bank Lenders' Agent relating to the Collateral pursuant to Section 6.2 of the New Credit Agreement. To satisfy the delivery requirements, the Company and the Guarantors, if applicable, may file or post electronically such information required to be delivered to the Trustee and the Holders of the Notes, if applicable, pursuant to this Section 4.04 and Section 4.05 in a manner and method mutually acceptable to the Company and the Trustee and that provides for the access to such information by the Trustee, and upon request of any Holder in accordance with Section 7.06, the access to such information by such Holder. Delivery of all reports, information and documents to the Trustee under this Agreement is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable therefrom, including compliance with any of the Company's covenants hereunder. The Trustee shall not disclose any material, non-public information (all information received pursuant to this Section 4.04 or pursuant to other provisions of this Agreement and identified as such in writing by the Company on the face thereof, except for information received pursuant to Section 4.04(d) and Section 4.04(i)) received from any Note Party to a Holder of the Notes unless such Holder enters into a standstill and confidentiality agreement in a form and substance satisfactory to the Company and the Trustee, and which shall provide that the recipients of such information shall indemnify the Trustee against any misuse or improper disclosure of such information. In addition to the financial statements referred to above, Borrowers ▇▇▇▇▇▇▇▇▇ agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to (in accordance with GAAP) and a Consolidated basis (as defined herein) and that, except for the Activation Date and that Insurance Subsidiaries, no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parentthe Company. Borrowers agree that to cooperate with the Bank Lenders' Agent to allow Bank Lenders' Agent to consult with their certified public accountants if Bank Lenders' Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Bank Lenders' Agent and to release to Bank Lenders' Agent whatever financial information concerning Borrowers or their Subsidiaries that Bank Lenders' Agent reasonably may requestrequest and shall deliver copies of such information to the Trustee. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Bank Lenders' Agent pursuant to or in accordance with this Agreement, and agree that Bank Lenders' Agent may contact directly any such accounting firm or service bureau in order to obtain such information; provided, however, so long as no Event of Default has occurred and is continuing, Bank Lenders' Agent shall give Borrowers a copy of any written request for information from Bank Lenders' Agent to such accounting firm or bureau services and Borrowers shall have an opportunity to attend any meeting between Bank Lenders' Agent and such accounting firm or bureau services with respect to such information requests.
Appears in 1 contract
Sources: Indenture (Amerco /Nv/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the order and details of presentation, the lack of footnotes and being subject to year-end audit adjustments, so long as such exceptions are consistent with financial statements delivered to Agent prior to the execution and delivery of this Agreement) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(iv) a Solvency Certificate, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries on a consolidated basis for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including any "going concern" exception or qualification), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20, and
(iii) a certificate executed by the chief financial officer of Parent stating that Parent and Loan Parties have paid all applicable deemed dividend taxes for the preceding fiscal year and setting forth the amount of such taxes,
(c) as soon as available, but in any event within 30 days prior to after the start of each of Parent's fiscal years,
(i) copies of BorrowersLoan Parties' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by Parent or any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent or any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of BorrowersLoan Parties' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueor Canada Customs and Revenue Agency, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower Loan Party conducts business or is required to pay any such excise tax, (ii) where any BorrowerLoan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerLoan Party, or (iii) where any BorrowerLoan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower any Loan Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers Loan Parties propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Loan Parties. In addition to the financial statements referred to above, Parent and Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Restricted Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Outsourcing Services Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent’s fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's ’s fiscal years,
(i) a company company-prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Domestic Subsidiaries' ’ operations during such period,
(ii) a certificate signed on behalf of the Parent by the chief financial officer or, if the chief financial officer is not available, the chief accounting officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Domestic Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, and except for changes in the ordinary course not otherwise constituting an Event of Default), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.18,
(b) as soon as available, but in any event within 45 days after the end of each quarter during each of Parent’s fiscal years,
(i) a company-prepared consolidating balance sheet and income statement covering Parent’s and its Domestic Subsidiaries’ operations during such period (the omission of a consolidating cash flow statement from this clause being intentional),
(ii) a certificate signed on behalf of the Parent by the chief financial officer or, if the chief financial officer is not available, the chief accounting officer of Parent to the effect that:
A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Domestic Subsidiaries,
B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, and except for changes in the ordinary course not otherwise constituting an Event of Default), and
C. there does not exist any condition or event that constitutes a Default or Event of Default (bor, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto),
(c) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),, and
(ii) a certificate of such accountants addressed to Agent and Lender stating that, in the Lenders stating that course of performing their audit of the aforedescribed annual financial statements, there did not come to the attention of such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18 with respect to the subject fiscal year,
(cd) as soon as available, but in any event within 30 days prior to after the start of each of Parent's ’s fiscal years,
(i) , copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal yeartwelve (12) months, month by month, certified by the chief financial officer or chief accounting officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Domestic Subsidiaries during the period covered thereby,
(de) if and when (or within five Business Days after) filed by any Borrower,
(i) notice of the filing of each Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reportsreports (it being contemplated that Lender will obtain the actual filings using Lender’s own resources),
(ii) any other filings made by any such Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ United States federal income tax returns, any Domestic Subsidiary’s United States federal partnership tax reports, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(ef) if and when (or within five Business Days after) sent or received by any Borrower, copies of any notices, demands, or notices of default from any Borrower to the holders of the Senior Notes or from any holder of the Senior Notes to any Borrower,
(g) if and when filed by any Borrower or any Domestic Subsidiary of a Borrower and as if requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or any Domestic Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s or any Domestic Subsidiary of a Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Domestic Subsidiary, or (iii) where any Borrower's ’s and any Domestic Subsidiary of a Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fh) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers are taking or propose to take with respect thereto.,
(gi) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on any Borrower or any Domestic Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Domestic Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Domestic Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(j) promptly upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Domestic Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements for the subject dates and periods prepared on both a basis consolidated and consolidating basis; provided, however, that the monthly financial statements provided pursuant to Section 6.3(a) and the annual, audited financial statements provided pursuant to Section 6.3(c) need be determined prior to the Activation Date and only on a consolidated basis. Parent also agrees that no Borrower, or any Domestic Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Lender to allow Lender to consult with their independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers or their Subsidiaries that Agent Lender reasonably may request. Each Borrower waives ; provided, however, that Borrowers make no assurance with respect to the right independent determinations of the accountants as to assert a confidential relationship, if any, it may have with any accounting firm the nature or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationextent of their cooperation.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with which shall deliver copies to each Lender:
(a) (i) prior to the occurrence of a Triggering Event, unless the average of the sum of the Revolver Usage, Irish Loan Usage and UK Loan Usage (taken as a whole) over the immediately preceding 30 day period exceeds $75,000,000, as soon as possible, but in any event, within 45 days after the end of each fiscal quarter, and (ii) if clause (i) is not applicable, as soon as available, but in any event within 30 days (45 days in the case of a fiscal month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each fiscal month during each of Parent's Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed Section 7.3 of the Loan Agreement hereby is amended by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise taxdeleting the semi-colon at the end of subsection (a) thereof and inserting in lieu thereof a period, and (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or deleting subsection (iiic) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of inserting the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau following in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.lieu thereof:
Appears in 1 contract
Sources: Loan Agreement (Palm Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Restricted Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Restricted Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. as of the date of such certificate, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Restricted Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Restricted Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower or any Restricted Subsidiary of a Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or any Restricted Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's or any Restricted Subsidiary of a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Restricted Subsidiary, or (iii) where any Borrower's or any Restricted Subsidiary of a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Borrower or any Restricted Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Restricted Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Restricted Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Restricted Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver to Agent within 30 days of the end of each month, Parent's calculation of its EBITDA for such month and for the twelve month period ending on the last day of such month, financial statements prepared on both a consolidated and consolidating basis to be determined prior to for the Activation Date immediately preceding month, and a borrowing base certificate as of the last day of such month. Parent agrees that no Borrower, or any Restricted Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Restricted Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Majestic Star Casino LLC)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated and consolidating balance sheetsheet and income statement of Parent and its Subsidiaries, income statementand, and for every month that is the last month of a fiscal quarter, a consolidated statement of cash flow covering Parent's the operations of Parent and its Subsidiaries' operations Subsidiaries during such periodfiscal quarter,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.19 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.19, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) , consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 2 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower any Obligor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) any Obligor. In addition to the financial statements referred to above, Borrowers Obligors agree to deliver financial statements of Parent and its Subsidiaries prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers Obligors agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Obligors that Agent may reasonably may request. Each Borrower Obligor waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (En Pointe Technologies Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal yearsFiscal Years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period, on both a consolidated and consolidating basis and by Business Segment,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers Loan Parties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.18, and
(iv) a general ledger reconciliation
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal yearsFiscal Years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal yearFiscal Year, on both a consolidated and consolidating basis and by Business Segment, audited by independent certified public accountants reasonably acceptable to Agent (it being understood that such audit may be performed and presented on a consolidated basis only) and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) Fiscal Years, copies of BorrowersLoan Parties' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal yearFiscal Year, month by month, on both a consolidated and consolidating basis and by Business Segment, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerLoan Party,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Loan Party with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of BorrowersLoan Parties' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Loan Party or any Subsidiary of a Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower Loan Party or any Subsidiary of a Loan Party conducts business or is required to pay any such excise tax, (ii) where any BorrowerLoan Party's or any Subsidiary of a Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Loan Party or such Subsidiary, or (iii) where any BorrowerLoan Party's or any Subsidiary of a Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers Loan Parties propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Loan Party or any Subsidiary of a Loan Party, notice of all actions, suits, or proceedings brought by or against any Loan Party or any Subsidiary of a Loan Party before any Governmental Authority which, if determined adversely to such Loan Party or such Subsidiary, reasonably could be expected to result in a Material Adverse Change,
(i) promptly and in any event (A) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Benefit Plan has occurred, (B) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate propose to take with respect thereto, (ii) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (iii) promptly and in any event within 10 days after the filing thereof with the Internal Revenue Service if requested by Agent, copies of each Schedule B (Actuarial Information) or the federal, state, local or foreign equivalent thereof to the annual report (Form 5500 Series) or the federal, state, local or foreign equivalent thereof with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof, and (vi) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by any Loan Party or any ERISA Affiliate thereof,
(i) immediately upon obtaining knowledge thereof, notice of the termination of any customer contract or any Material Contract or any material changes in the terms of any such contract or any Material Contract, provided that, in the case of customer contracts that are not Material Contracts, this Section 6.3(i) shall not apply to the extent that (i) any such contract both (A) generated gross revenue of less than $250,000 for the most recently completed Fiscal Year of the Parent and (B) has a remaining term of more than one year or (ii) any such contract both (A) generated gross revenue of less than $500,000 for the most recently completed Fiscal Year of the Parent and (B) has a remaining term of less than one year,
(j) concurrently with delivery to or receipt from the Revolver Agent or any Revolver Lender, a copy of each notice, demand, report, statement or other document delivered to or received from the Revolver Agent or any Revolver Lender (unless otherwise required to be delivered hereunder), and
(k) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Loan Parties or their Subsidiaries. In addition to the financial statements referred to above, Borrowers Loan Parties agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year Fiscal Year different from that of Parent, provided that each of IPD, Huck NC and Huck ▇▇▇▇▇▇ ▇▇▇ have the Fiscal Year specified in the definition of such term. Borrowers Loan Parties agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Loan Parties or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent’s fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's ’s fiscal years,
(i) , copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower or any Subsidiary of a Borrower and as reasonably requested by Agent, reasonably satisfactory evidence of payment of material applicable excise taxes in each jurisdiction in which (i) any Borrower or any Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on any Borrower or any Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with sufficient copies for each Lender the following documents or their electronic equivalent (it being understood that, absent request by Agent for information with respect to each Lender:a particular Obligor, this covenant shall be deemed satisfied to the extent that the Administrative Borrower provides the following information for the Obligors taken as a whole):
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statementstatement of earnings, and statement of cash flow covering Parent's and its Subsidiaries' Subsidiaries operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Administrative Borrower on behalf of Administrative Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and present fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers the Obligors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have the applicable Obligor has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.19 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.19, and
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's fiscal yearsyears that occurs after the Closing Date,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by PriceWaterhouseCoopers or other independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statementstatement of earnings, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.19,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueSEC, and
(iviii) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(gd) upon the request of Agent, ,
(i) any other report reasonably requested relating to the financial condition of Borrowers.
(h) Parent or any of the other Obligors. In addition to the financial statements referred to above, Borrowers agree to deliver promptly to Agent (with copies for each Lender) copies of management reports, in the form historically prepared by Parent, that reflect the operational performance of each of the individual business segments of the Borrowers taken as a whole. Without limiting the foregoing, Borrowers agree (unless and until the UK Metals Operations have been sold) -84 that each of the financial statements to be delivered hereunder shall be prepared on a consolidating basis to be determined prior to reflecting the Activation Date financial performance of Parent and that no Borrower, or any Subsidiary its Subsidiaries (exclusive of a Borrower, will have a fiscal year different from that the financial performance of Parentthe UK Metals Operations) and reflecting the UK Metals Operations. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers the Obligors that Agent reasonably may request. Each Borrower waives the right ; provided, however, that, prior to assert a confidential relationshipcontacting such independent certified public accountants, if anyAgent shall attempt, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreementgood faith, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationinformation from Borrowers.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of the a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period quarter with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's ’s fiscal years,
(i) copies of Borrowers' Parent’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole reasonable discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower, within 5 days of filing,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) in which any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on any of the properties or assets of any BorrowerCollateral, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared on both a basis to be determined prior to the Activation Date consolidated and consolidating basis. Parent agrees that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right Borrowers are obligated to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by deliver to Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Silicon Graphics Inc /Ca/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 120 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 90 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information which could be material to Agent's Lien on the Collateral or the repayment of the Obligations and that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a promptly after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Leapfrog Enterprises Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.21,
(b) as soon as available, but in any event within 90 days after the end of each of Parentthe Borrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management), provided further that interim "draft" fiscal year financial statements will be delivered to the Agent, with copies to each Lender, within 45 days after the end of the Borrower's fiscal years,
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.21,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parentthe Borrower's fiscal years,
(i) copies of Borrowers' ProjectionsBorrower's Business Plan, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole commercially reasonable discretion, for the forthcoming 3 years2 years (or through the Maturity Date, whichever is earlier), year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent Borrower and its Subsidiaries during the period covered therebythereby (it being understood that Agent may in its Permitted Discretion, but shall not be under any obligation to, revise financial and Excess Availability covenants set forth in Section 7.21 as a result of its review of such Business Plans and/or create or expand Reserves),
(d) if and when filed by any the Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any the Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other material information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed within 30 days of filing by any the Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any the Borrower conducts business or is required to pay any such excise tax, tax and either (iix) where any the Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any the Borrower, or (iiiy) where any the Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a the Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and and, within 5 Business Days thereof, a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) within 30 days of request, upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or neither the Borrower nor any Subsidiary of a Borrower, the Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Borrower that Agent reasonably may request. Each The Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by one of the so-called "Big Five" firms of independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal yearsquarters,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each If an Event of Default has occurred and is continuing, Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information. Unless an Event of Default has occurred and is continuing, Lender agrees to provide Borrower with notice before contacting such accounting firm and agrees that Borrower may participate in any meeting or discussions with such accounting firm and Lender (so long as the presence of Borrower would not delay the meeting or discussion and so long as the presence of Borrower would not inhibit the ability of the accounting firm to provide Lender with a candid assessment of Borrower's financial condition); it being understood that Lender shall not be liable to Borrower for failing to provide such notice so long as such failure is not wilful.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower's fiscal quarters in a fiscal yearquarters) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and cash flow projections (and a quarterly statement of cash flow delivered for each month that is at the end of one of Borrower's fiscal quarters) covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder (other than the statements of cash flow which are prepared in accordance with past practices but not in accordance with GAAP) have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent (it being acknowledged by Agent that PriceWaterhouseCoopers is acceptable to Agent as of the Closing Date) and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to after the start of each of ParentBorrower's fiscal years,
(i) copies , a copy of Borrowers' Projectionsthe Budget, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueSEC, and
(iviii) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower or its Subsidiaries and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower or any Borrower Guarantor conducts business or is required to pay any such excise tax, (ii) where Borrower's or any BorrowerGuarantor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower or any BorrowerGuarantor, or (iii) where Borrower's or any BorrowerGuarantor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a within 5 Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change,
(h) on or before December 1 of each year, a schedule of all the Recurring Trade Shows that are planned for the following year, and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on a consolidated basis to be determined prior to the Activation Date and revenue and EBITDA summaries on a business segment basis and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower or its Subsidiaries Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent (and if so requested by Agent, with copies to for each Lender:
(a) each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Agent: as soon as available, but in any event within 30 days (45 days in the case of a month that is after the end of one of the first 3 Parent’s fiscal quarters in a fiscal year) (or within 21 days after the end of each fiscal month ending during an Increased Financial Reporting Period) during each of Parent's ’s fiscal years,
, (i) a company prepared a)an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of cash flow shareholder’s equity covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent period and compared to the effect that:
plan, and (A) b)a Compliance Certificate along with the financial statements delivered hereunder have been prepared underlying calculations, including the calculations to arrive at the Fixed Charge Coverage Ratio (calculated on a trailing four fiscal quarters basis, unless an Increased Financial Reporting Period exists, in accordance with GAAP (except for which case, the lack Fixed Charge Coverage Ratio would be calculated on a trailing 12 fiscal months basis and, in each case, regardless of footnotes and being subject whether the Fixed Charge Coverage Ratio is then required to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as be tested under Section 7 of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier dateAgreement), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) . as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
, (i) c)consolidated and consolidating financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including any (A) “going concern” or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7 of the Agreement), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of cash flow shareholder’s equity, and, if prepared, such accountants' ’ letter to management),
, and (ii) d)a Compliance Certificate along with the underlying calculations, including the calculations to arrive at the Fixed Charge Coverage Ratio (calculated on a certificate trailing four fiscal quarters basis, unless an Increased Financial Reporting Period exists, in which case, the Fixed Charge Coverage Ratio would be calculated on a trailing 12 fiscal months basis and, in each, case, regardless of such accountants addressed whether the Fixed Charge Coverage Ratio is then required to Agent and the Lenders stating that such accountants do not have knowledge be tested under Section 7 of the existence of any Default or Event of Default under Section 7.20,
(c) Agreement). as soon as available, but in any event within 30 45 days prior to after the start of each of Parent's ’s fiscal years,
, (i) copies e)copies of Borrowers' the Loan Parties’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionPermitted Discretion, for such fiscal year and the forthcoming 3 2 years, year by year, and for the forthcoming such fiscal year, month by month, certified by the chief financial officer officer, Treasurer, CEO, or President of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries the Loan Parties during the period covered thereby,
(d) . if and when filed by any Borrower,
Parent, (i) f)Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
, (ii) any g)any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returnsSEC, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any h)any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by . promptly, but in any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) event within 5 days after any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof (i)notice of such event or condition and a statement of the curative action that Borrowers ▇▇▇▇▇▇▇▇▇ propose to take with respect thereto.
. promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Parent or any of its Subsidiaries, (g) j)notice of all actions, suits, or proceedings brought by or against Parent or any of its Subsidiaries before any Governmental Authority which reasonably could be expected to result in a Material Adverse Effect. upon the request of Agent, any (k)any other report information reasonably requested relating to the financial condition of Borrowers.
Parent or its Subsidiaries. promptly after any reasonable request therefor from Agent or any Lender, (l)information and documentation for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation. Information required to be delivered pursuant to clauses (a) (as to fiscal quarters only), (b), (f), (g) and (h) In addition shall be deemed to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrowerhave been delivered if such information, or any Subsidiary one or more annual, quarterly or other reports containing such information, shall have been posted on Parent’s website on the internet (currently ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇) or by Agent on SyndTrak or a similar site to which the Lenders have been granted access or shall be available on the website of a Borrower, will have a fiscal year different from the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇; provided that Administrative Borrower shall deliver paper copies of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release such information to Agent whatever financial or any Lender that reasonably requests such delivery; and provided further that such information concerning Borrowers that shall only be deemed to have been delivered when posted on any such website upon notification by Administrative Borrower to Agent reasonably may request. Each Borrower waives of such posting (which notification, notwithstanding the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this terms of Section 11 of the Agreement, and agree that may be given by electronic mail without requirement of Administrative ▇▇▇▇▇▇▇▇’s receipt of an acknowledgment from Agent may contact directly any such accounting firm or service bureau in order as to obtain such informationdelivery).
Appears in 1 contract
Sources: Credit Agreement (Unifi Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearand on or before June 14, 2007, for the months ending February 28, 2007, and March 31, 2007) after the end of each month during each of Parent's fiscal years,
(i) a company company-prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Domestic Subsidiaries' operations during such period,
(ii) a certificate signed on behalf of the Parent by the chief financial officer or, if the chief financial officer is not available, the chief accounting officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Domestic Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, and except for changes in the ordinary course not otherwise constituting an Event of Default), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.17 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.17,
(b) as soon as available, but in any event within 45 days after the end of each quarter during each of Parent's fiscal years (but notwithstanding the foregoing, on or before June 14, 2007, for the fiscal quarter ending March 31, 2007),
(i) a company-prepared consolidating balance sheet and income statement covering Parent's and its Domestic Subsidiaries' operations during such period (the omission of a consolidating cash flow statement from this clause being intentional),
(ii) a certificate signed on behalf of the Parent by the chief financial officer or, if the chief financial officer is not available, the chief accounting officer of Parent to the effect that:
A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Domestic Subsidiaries,
B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, and except for changes in the ordinary course not otherwise constituting an Event of Default), and
C. there does not exist any condition or event that constitutes a Default or Event of Default (bor, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto),
(c) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and Lender stating that, in the Lenders stating that course of performing their audit of the aforedescribed annual financial statements, there did not come to the attention of such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.17 with respect to the subject fiscal year,
(cd) as soon as available, but in any event within 30 days prior to after the start of each of Parent's fiscal years,
(i) copies of Borrowers' , Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal yeartwelve (12) months, month by month, certified by the chief financial officer or chief accounting officer of Parent as being such officer's diligently prepared good faith best estimate of the financial performance of Parent and its Domestic Subsidiaries during the period covered thereby,
(de) if and when (or within five Business Days after) filed by any Borrower,
(i) notice of the filing of each Form 10-Q quarterly reports, Form 10-K 10‑K annual reports, and Form 8-K current reportsreports (it being contemplated that Lender will obtain the actual filings using Lender's own resources),
(ii) any other filings made by any such Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' United States federal income tax returns, any Domestic Subsidiary's United States federal partnership tax reports, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(ef) if and when (or within five Business Days after) sent or received by any Borrower, copies of any notices, demands, or notices of default from any Borrower to the holders of the Outstanding Notes or from any one of the trustee under the Senior Indenture, the trustee under the indenture governing the Existing Notes, or the holders of 25% or more of the then outstanding aggregate principal amount of either the Existing Notes or the Senior Notes,
(g) if and when filed by any Borrower or any Domestic Subsidiary of a Borrower and as if requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or any Domestic Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's or any Domestic Subsidiary of a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Domestic Subsidiary, or (iii) where any Borrower's and any Domestic Subsidiary of a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fh) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers are taking or propose to take with respect thereto.,
(gi) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on any Borrower or any Domestic Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Domestic Subsidiary of a Borrower before any Governmental Authority that, if determined adversely to such Borrower or such Domestic Subsidiary, could be reasonably expected to result in a Material Adverse Change, and
(j) promptly upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Domestic Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements for the subject dates and periods prepared on both a basis consolidated and consolidating basis; provided, however, that the monthly financial statements provided pursuant to Section 6.3(a) and the annual, audited financial statements provided pursuant to Section 6.3(c) need be determined prior to the Activation Date and only on a consolidated basis. Parent also agrees that no Borrower, or any Domestic Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Lender to allow Lender to consult with their independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers or their Subsidiaries that Agent Lender reasonably may request. Each Borrower waives ; provided, however, that Borrowers make no assurance with respect to the right independent determinations of the accountants as to assert a confidential relationship, if any, it may have with any accounting firm the nature or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationextent of their cooperation.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver The Company shall deliver to Agent, with copies to each Lenderthe Trustee:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parentthe Company's fiscal years,
(i) a company Company prepared consolidated Consolidated balance sheet, income statement, and statement of cash flow covering Parentthe Company's and its Subsidiaries' operations during such periodmonth and the fiscal year to date, together with a comparison of such financial statements to (A) Company's Projections (as defined in the New Credit Agreement) delivered prior to the Issue Date or pursuant to Section 4.04(c) and (B) the Consolidated balance sheet, income statement, and statement of cash flow covering Company's and its Subsidiaries' operations for such corresponding period in the immediately preceding fiscal year,
(ii) a company prepared schedule detailing Company's Consolidated EBITDA as of the end of each month for the 13-month period then ended,
(iii) a certificate signed by the a chief financial officer or a principal accounting officer of Parent the Company to the effect that:
(A) the financial statements and other financial information delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Company and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this the New Credit Agreement and the other Loan Documents (as defined in the New Credit Agreement) are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers the Note Parties have taken, are taking, or propose to take with respect thereto), ; and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 5.19 is to be tested, a Compliance Certificate (as defined in the New Credit Agreement) demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.205.19, andtogether with a reconciliation of the company prepared Consolidated balance sheet, income statement, and statement of cash flow for Company and its Subsidiaries for the 3-month period then ended to the audited financial statements contained in the 4 most recent Form 10-Q quarterly reports and the most recent Form 10-K annual report filed by Company and its Subsidiaries,
(b) as soon as available, but in any event within 90 120 days after the end of each of ParentCompany's fiscal years,
(i) financial statements of Parent the Company and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Trustee and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders Trustee stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.206.01,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentCompany's fiscal years,
(i) , copies of Borrowers' ProjectionsCompany's Projections (as defined in the New Credit Agreement), in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agentthe Bank Lenders, in its sole discretiontheir Permitted Discretion (as defined in the New Credit Agreement), for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Company as being such officer's good faith best estimate of the financial performance of Parent Company and its Subsidiaries on a Consolidated basis during the period covered thereby,
(d) if if, when and when to the extent filed by any BorrowerNote Party with the SEC or any other Governmental Authority,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Note Party with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueIRS, and
(iv) any other information that is provided by Parent the Company to its shareholders generally,
(e) if and when filed by any Borrower Note Party and as if requested by AgentTrustee, reasonably satisfactory evidence of payment of applicable excise and property taxes in each jurisdiction jurisdictions in which (i) any Borrower Note Party conducts business business, owns real property or is required to pay any such excise or real property tax, (ii) where any BorrowerNote Party's failure to pay any such applicable excise or property tax would result in a Lien on the properties or assets of any BorrowerNote Party, or (iii) where any BorrowerNote Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, notice of all actions, suits or proceedings brought by or against any Note Party before any Governmental Authority that, if determined adversely to such Note Party, could reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.thereto and annually a statement regarding compliance with this Agreement,
(h) In addition to as soon as a Borrower has actual knowledge of any event or condition that constitutes a default or an event of default under the financial statements referred to aboveNew AMERCO Note Documents, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no BorrowerNew Credit Agreement or the Loan Documents (as defined in the New Credit Agreement), or any Subsidiary Funded Debt (including, without limitation, any TRAC Lease Transaction, the PMCC Like Kind Exchange Lease or the PMCC Leveraged Lease) or any notice, call, default of event of default under any Support Party Agreement, notice thereof and a Borrowerstatement of the curative action that Borrowers or Guarantors, will have a fiscal year different as applicable, propose to take with respect thereto,
(i) such information as may, from that time to time, be necessary to comply with any applicable provision of ParentTIA Section 314(a), and
(j) if requested by the Trustee, such information provided to the Bank Lenders' Agent relating to the Collateral pursuant to Section 6.2 of the New Credit Agreement. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent To satisfy the delivery requirements, the Company and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationshipGuarantors, if anyapplicable, it may have file or post electronically such information required to be delivered to the Trustee and the Holders of the Notes, if applicable, pursuant to this Section 4.04 and Section 4.05 in a manner and method mutually acceptable to the Company and provide for the Trustee's access to such information. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable therefrom, including compliance with any accounting firm or service bureau in connection with of the Company's covenants hereunder. The Trustee shall not disclose any material, non-public information requested by Agent (all information received pursuant to this Section 4.04 or pursuant to other provisions of this Agreement and identified as such in accordance with this Agreementwriting by the Company on the face thereof, except for information received pursuant to Section 4.04(a)(iii), Section 4.04(b), Section 4.04(d), Section 4.04(g) and Section 4.04(i)) received from any Note Party to a Holder of the Notes unless such Holder enters into a standstill and confidentiality agreement in a form and substance satisfactory to the Company and the Trustee, and agree that Agent may contact directly which shall provide for indemnification by the recipients of such information of the Trustee against any such accounting firm misuse or service bureau in order to obtain improper disclosure of such information.
Appears in 1 contract
Sources: Indenture (Amerco /Nv/)
Financial Statements, Reports, Certificates. Deliver to AgentAgent and the Specified Appointee, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and the Specified Appointee and certified, without any qualificationsqualifications (including, without limitation, (A) any going concern or like qualification or exception or (B) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent Agent, the Specified Appointee and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentAgent and the Specified Appointee, in its their sole discretiondiscretions, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generallyshareholders,
(e) if and when filed by any Borrower Loan Party and as requested by AgentAgent or the Specified Appointee, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower such Loan Party conducts business or is required to pay any such excise tax, (ii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Loan Party, or (iii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties,
(g) promptly after the commencement thereof, but in any event within five days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gi) promptly after receipt or delivery thereof, copies of any material notices that any Loan Party receives from or sends to any Person in connection with the New Notes Documents and (ii) at least 3 Business Days prior to the effective date thereof, any amendments, modifications, waivers or other changes to any of the New Notes Documents, and
(j) upon the request of AgentAgent or the Specified Appointee, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or any of its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and the Specified Appointee and to release to Agent and the Specified Appointee whatever financial information concerning Borrowers that Borrower Agent or the Specified Appointee reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any request for information requested by Agent or the Specified Appointee pursuant to or in accordance with this Agreement, and agree agrees that Agent and the Specified Appointee may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Abraxas Petroleum Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 60 days in the case of a month that is the end of one of the first 3 Borrower’s fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate Compliance Certificate signed by the chief financial officer or VP of Parent Finance of Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's Borrower’s fiscal years,
(i) , financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationswith only such qualifications as may be satisfactory to Agent in its sole discretion, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 45 days after the start of the Borrower’s 2008 fiscal year, and 30 days prior to after the start of each of Parent's Borrower’s fiscal years,
(i) years thereafter, copies of Borrowers' Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer or VP of Parent Finance of Borrower as being such officer's prepared in good faith best estimate based on assumptions believed to be reasonable at the time of the financial performance of Parent and its Subsidiaries during the period covered therebypreparation thereof,
(d) if and when filed by any BorrowerBorrower (or promptly thereafter),
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) , and any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returnsSEC, and any amendments theretoit being understood that, filed with the Internal Revenue Service or, with respect as to any Foreign Borrowersuch filings, Borrower may deliver the same by electronic mail (to such email address(es) as may be provided for such purpose from time to time by Agent), including any comparable Governmental Authority responsible for internal revenuesuch electronic mail specifying the applicable filing, and
(ivii) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested upon request by Agent, satisfactory evidence of payment payment, and extent of nonpayment (if applicable), by Borrower and its Subsidiaries of applicable excise taxes in each jurisdiction in which (i) any Borrower or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s or its Subsidiaries’ failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerBorrower or its Subsidiaries, or (iii) where any Borrower's ’s or its Subsidiaries’ failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Intentionally Omitted,
(g) promptly after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gh) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees (if and when it has any Subsidiaries) to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower an opportunity to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower or its Subsidiaries Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers Companies contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers Companies have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.17,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of BorrowersCompanies' ProjectionsProjections (which shall not necessarily include the final budget), in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 two years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,; and within 30 days after end of each of Parent's fiscal years, the final budget prepared in same manner as the Projections.
(d) if and when filed by any BorrowerCompany,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Company with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of BorrowersCompanies' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Company and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower Company conducts business or is required to pay any such excise tax, (ii) where any BorrowerCompany's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Company, or (iii) where any BorrowerCompany's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower Company has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers Companies propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Company, notice of all actions, suits, or proceedings brought by or against any Company before any Governmental Authority which, if determined adversely to such Company, reasonably could be expected to result in a Material Adverse Change, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Companies. In addition to the financial statements referred to above, Borrowers Companies agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers Companies agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Companies or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated and consolidating balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.21,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) , financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Projectionsthe Business Plan, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent Borrower and its Subsidiaries during the period covered therebythereby (it being understood that Agent may in its Permitted Discretion, but shall not be under any obligation to, revise financial, Excess Availability and retail covenants set forth in Sections 7.20 and 7.21 as a result of its review of such Business Plans and/or create or expand Reserves),
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as and, if requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a and in any event within two (2) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or neither Borrower nor any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent (with prior notice to Borrower and subject to the right of the Borrower to participate in any conference) and to release to Agent whatever financial information (with copies to Borrower) concerning Borrowers Borrower that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.21, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.21,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, on a yearly and month by monthmonth basis, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent and Borrower to its their respective shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of Parent. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized (and Borrower shall so instruct its independent certified public accountant) to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information, provided, that, Agent agrees that no Event of Default shall be deemed to have occurred under this Agreement if any such accounting firm or service bureau refuses to provide any such financial information, it being understood that Borrower shall not thereby be relieved of its obligation to provide such financial information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, consolidating (by Subsidiary) income statement, showing revenue, operating income and statement EBITDA of cash flow covering Parent's the Parent and each of its Subsidiaries' operations during such period,; and
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) A. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) B. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(Db) as soon as available, but in any event within 45 days after the end of each of Parent's fiscal quarters,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period, and
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are no unpaid payroll taking, or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become duepropose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section SECTION 7.20, and
(bc) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section SECTION 7.20,
(cd) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(de) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(gh) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to (other than the monthly income statement which will be determined prior to the Activation Date prepared on a consolidating basis only) and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent if a Default or Event of Default has occurred and is continuing, Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and adjustments)and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Parent and Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Parent or Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.21, and
(b) as soon as available, but in any event within 90 105 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.21,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Parent's and each Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, on a yearly and month by monthmonth basis, certified by the chief financial officer of Parent or Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Bank during the period covered thereby,
(d) if and when filed by any BorrowerParent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as either Parent or a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Parent or Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Parent or Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree Parent and each Borrower agrees that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Parent or Borrowers that Agent reasonably may request. Each Parent and each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 three fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,;
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,;
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), ; and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, ; and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.19 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, 7.19; and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualificationsqualifications (including, without limitation, (i) any "going concern" or like qualification or exception, or (ii) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),; and
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,7.19;
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) ), reasonably satisfactory to Agent, in its sole discretion, Lender for the forthcoming 3 years, year by year, but not beyond the Maturity Date, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent as being such officerParent's good faith best estimate of the consolidated financial performance of Parent and its Subsidiaries during the period covered thereby,;
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,;
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,SEC;
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, Service; and
(iv) any other information that is provided by Parent to its shareholders generally,;
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the material properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax is reasonably expected to result in a Material Adverse Change;
(f) promptly after the commencement thereof, but in any event within five days after the service of process with respect thereto on any Borrower or any Subsidiary thereof, notice of all actions, suits or proceedings brought by or against such Borrower or any Subsidiary thereof before any Governmental Authority which, if determined adversely to such Borrower or any Subsidiary thereof, could reasonably be expected to result in a Material Adverse Change,;
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.; and
(gh) upon the request of AgentLender, any other report reasonably requested in its Permitted Discretion relating to the financial condition of Borrowers.
(h) any of the Borrowers or any of their Subsidiaries, or the Collateral. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date (except that consolidating financial statements shall not include statements of cash flows) and agree that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent Lender (provided, however, that Lender shall (i) provide Borrowers with two days prior written notice of its intent to communicate with Borrowers' independent certified public accountants, which notice shall specify in reasonable detail the nature of such communication and (ii) provide to Borrowers' accountants such access letters or other letters or agreements as such accountants shall reasonably request) and to release to Agent Lender whatever financial information concerning Borrowers that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower's fiscal quarters in a fiscal yearquarters) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its the Restricted Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent Borrower and its the Restricted Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) , consolidated and consolidating financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower or its Subsidiaries and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any Borrower's or its Subsidiaries' failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerBorrower or its Subsidiaries, or (iii) where any Borrower's or its Subsidiaries' failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change,
(h) promptly after receipt thereof, any notices, complaints, orders, or other communications from the U.S. Food and Drug Administration with respect to any material violation of or non-compliance with regulations applicable to Borrower or its Subsidiaries or permits or licenses held by Borrower or its Subsidiaries, and
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower or its Subsidiaries Agent reasonably may request. Each , provided, in all cases, that Borrower waives shall have received notice of any such proposed consultation and have the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any be present at such accounting firm or service bureau in order to obtain such informationconsultation.
Appears in 1 contract
Sources: Loan and Security Agreement (Hudson Respiratory Care Inc)
Financial Statements, Reports, Certificates. Deliver to the Administrative Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month of the 11 Fiscal Periods during each of Parent's fiscal years’s Fiscal Years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,, in each case setting forth in comparative form the figures for the corresponding period in the prior Fiscal Year;
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,;
(B) the representations and warranties of the Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), ; and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and.
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andCertificate.
(b) as As soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) ’s Fiscal Years, consolidated financial statements of Parent and its Subsidiaries for each such fiscal yearFiscal Year, audited by independent certified public accountants reasonably acceptable to the Administrative Agent and certified, without any qualifications, certified by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepareda copy of any “final” management letter delivered to Parent, such accountants' letter to managementits board of directors or any committees thereof),
(ii) , together with a certificate signed by the chief financial officer of such accountants addressed Parent certifying as to Agent the matters set forth in Section 5.3(a)(ii)(A)-(C) and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,a Compliance Certificate;
(c) as soon as available, but in any event within 30 90 days prior to after the start end of each of Parent's fiscal years,
(i) ’s Fiscal Years, copies of the Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to the Administrative Agent, in its sole discretion, for the forthcoming 3 yearsFiscal Year, year by year, and for the forthcoming fiscal year, on a month by monthmonth basis, certified by the chief financial officer of Parent as being such officer's ’s good faith best reasonable estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,, it being understood that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any Projections may differ from the projected results and no assurance can be given that the Projections will be realized;
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,;
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,SEC;
(iii) upon request by the Administrative Agent, in its Permitted Discretion, copies of the Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, Service; and
(iv) any other information that is provided by Parent to its shareholders generally,; provided, that for purposes of this clause (d), any information to be delivered hereunder shall be deemed to have been delivered when posted on the Parent’s website or otherwise made available on the website of the SEC;
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof together with a reasonably detailed description thereof and a statement of the curative action that the Borrowers propose to take with respect thereto.;
(f) promptly after the commencement thereof, but in any event within 10 Business Days after the service of process with respect thereto on any Group Member, notice of all actions, suits, or proceedings brought by or against any Group Member before any Governmental Authority which, if determined adversely to such Group Member, reasonably could be expected to result in a Material Adverse Effect;
(g) upon the request of Agentthe Administrative Agent in its Permitted Discretion, any other report reasonably requested relating to the financial condition of Borrowers.any Group Member; provided, that such reports shall not be overly burdensome for any Borrower to prepare; and
(h) as part of the Compliance Certificate delivered pursuant to clause (a)(iii) above, each in form and substance satisfactory to the Administrative Agent, a certificate by the Responsible Officer of the Parent certifying that (i) the Corporate Chart attached thereto (or the last Corporate Chart delivered pursuant to this clause (h)) is correct and complete as of the date of such Compliance Certificate, (ii) the Loan Parties have delivered all documents (including an updated Perfection Certificate as to locations of Collateral) they are required to deliver pursuant to any Loan Document on or prior to the date of delivery of such Compliance Certificate and (iii) complete and correct copies of all documents modifying any term of any Governing Document of any Group Member or any Subsidiary or joint venture thereof on or prior to the date of delivery of such Compliance Certificate have been delivered to the Administrative Agent or are attached to such certificate. In addition to the financial statements referred to above, the Borrowers agree to deliver financial statements prepared on both a basis consolidated and consolidating basis; provided, that (a) only Parent’s consolidated financial statements shall be audited, (b) consolidating financial statements shall be prepared without footnotes, and (c) the Borrowers shall only be required to deliver balance sheets and income statements on a consolidating basis. Parent agrees to cooperate with the Administrative Agent to allow the Administrative Agent to consult with its independent certified public accountants if the Administrative Agent reasonably requests the right to do so (and the Administrative Agent shall notify Parent as to the timing of such consultation and permit Parent to be determined prior present thereat or to the Activation Date otherwise participate therein) and that no Borrowerthat, or any Subsidiary of a Borrowerin such connection, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with the Administrative Agent and to release to the Administrative Agent whatever financial information concerning Borrowers any Group Member that the Administrative Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (within, 45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's the Borrower’s first three fiscal years,quarters:
(i) a company prepared unaudited consolidated balance sheet, income statement, and statement of cash flow covering Borrower’s and Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate Compliance Certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarterly and year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers each Credit Party contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or an Event of Default or Triggering Period (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers the Credit Parties have taken, are taking, or propose to take with respect thereto), and,
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, the calculations used in determining, when applicable (A) the Consolidated Coverage Test, (B) the Senior Secured Leverage Ratio and (C) compliance at the end of such period with the applicable financial covenants covenant contained in Section 7.207.17, andand provided that, during a Triggering Period, the Agent may require, by written request, that the Borrower provide unaudited consolidated financial statements of the Borrower and its Subsidiaries, including balance sheet, income statement and cash flow statement on a monthly basis within 30 days of month-end,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's Borrower’s fiscal years,
(i) , for such fiscal year and for the fourth fiscal quarter then most recently ended, consolidated financial statements of Parent and its Subsidiaries (and consolidating financial statements of Parent and its Subsidiaries, to the extent produced by Parent in the normal course of its operations) for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 60 days prior to after the start of each of Parent's Borrower’s fiscal years,
(i) , copies of Borrowers' the Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming such fiscal year, month quarter by month, certified quarter (or by such shorter periods as are reasonably requested by the chief financial officer of Parent as being such officer's Agent), which Projections shall represent Borrower’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby, it being understood that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any Projections may differ from the projected results and no assurance can be given that the Projections will be realized,
(d) if and when filed by any BorrowerParent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueSEC, and
(iviii) any other information that is provided by Parent to its shareholders generallygenerally (provided, that for purposes of this clause (d), any information to be delivered hereunder shall be deemed to have been delivered when posted on the Parent’s website or otherwise made available on the website of the SEC),
(e) if as soon as practicable, and when filed by in any event within five days after a Responsible Officer of the Parent or the Borrower has actual knowledge of the existence of any Default, Event of Default or other event having had a Material Adverse Effect, the Borrower shall give the Agent notice specifying the nature of such Default or Event of Default or other event and as requested by Agent, satisfactory evidence a statement of payment the curative action that Borrower or such other Credit Party proposes to take with respect thereto,
(f) within 30 days after the later of applicable excise taxes in each jurisdiction in which (i) the service of process with respect thereto on any Borrower conducts business Credit Party or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on time as exposure of the properties or assets Credit Party could be reasonably determined, notice of any Borrowerall actions, suits, or (iii) where proceedings brought by or against any Borrower's failure Credit Party before any Governmental Authority which, if determined adversely to pay any such applicable excise tax Credit Party, reasonably could would be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
any Credit Parties; provided that such reports shall not be overly burdensome for any Credit Party to prepare. Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (h) In addition and Agent shall notify Borrower as to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis timing of such consultations and permit Borrower to be determined prior present thereat or to the Activation Date otherwise participate therein) and that no Borrowerthat, or any Subsidiary of a Borrowerin such connection, will have a fiscal year different from that of Parent. Borrowers agree that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers any Credit Party that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Guaranty Agreement (Payless Shoesource Inc /De/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and a calendar quarter end statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
, to the best of his or her knowledge or belief: (A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(Bx) the representations and warranties of Borrowers Borrower contained in Section 5 of this Agreement and in the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
; and (Cy) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and;
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' management letter regarding internal accounting controls to managementthe audit committee of Borrower's board of directors),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,;
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, substantially similar in form to the form of the Closing Date Business Plan and satisfactory in substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by monthon a quarterly basis, certified by the chief financial officer of Parent Borrower as being such officerBorrower's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,;
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,;
(e) as soon as available, but in any event within 45 days after the end of each fiscal quarter during each of Borrower's fiscal years, a certificate signed by the chief financial officer of Borrower to the effect that, to the best of his or her knowledge, the quarterly financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Borrower and its Subsidiaries;
(f) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of all applicable excise taxes (to the extent such taxes exceed $500,000 in the aggregate) in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,;
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.; and
(gh) upon the request of AgentLender, in its Permitted Discretion, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated (including, without limitation, a calendar quarter end statement of cash flows) and consolidating (excluding statement of cash flows) basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any reasonable information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, sheet and income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer or chief accounting officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), andand -56-
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate (A) demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, (B) setting forth a calculation of TTM EBITDA, (C) setting forth a detailed calculation of Recurring Maintenance Revenues for the prior month, (D) setting forth an updated list of Maintenance Contracts, (E) setting forth a detailed calculation of all Royalties paid by Borrower during the prior month and the balance of Royalties payable at the end of such month, (F) certifying that all obligations for the payment of Royalties that are due and payable have been paid, and (G) certifying that no material change in Borrower's and UK Obligor's billing practices has occurred, and
(iv) for each month that is the end of a fiscal quarter of Borrower, (A) a Principal Officers Certificate and (B) a company prepared consolidated statement of cash flows for Borrower and its Subsidiaries for such period, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20, and
(iii) an updated appraisal of the Recurring Maintenance Revenues performed by an appraiser satisfactory to Lender,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in -57- its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer or chief accounting officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and and, within 5 Business Days after such knowledge is obtained, a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that, unless a Foreign Subsidiary is required to be determined prior have a fiscal year that is different than that of Borrower pursuant to the Activation Date and that applicable law, no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their independent certified public accountants are authorized to communicate Borrower agrees that, with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationshipBorrower's prior consent, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(iv) within 50 days after the end of each of Borrower's fiscal year-end, and within 30 days after the end of each fiscal quarter during each of Borrower's fiscal years other than the fiscal year-end, a Compliance Certificate setting forth, in reasonable detail, the Twelve Month Trailing EBITDA, Borrower's Earnings, and Deferred Maintenance Revenues, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) a report on all actions upon which Borrower is required to report to Lender pursuant to Section 5.16 or the Intellectual Property Security Agreement, and
(h) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a basis to be determined prior to the Activation Date consolidated and consolidating basis. Borrower agrees that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) bi-weekly, on each second Tuesday, beginning with the first Tuesday to occur after the Closing Date and continuing every second Tuesday thereafter, a current and updated forecast of weekly cash receipts and disbursements forecast for the immediately following thirteen-week period, showing projected cash receipts and planned disbursements for the applicable calendar week
(b) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal years,
(i) a company company-prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Domestic Subsidiaries' operations during such period,
(ii) a certificate signed on behalf of the Parent by the chief financial officer or, if the chief financial officer is not available, the chief accounting officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Domestic Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, and except for changes in the ordinary course not otherwise constituting an Event of Default), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(bc) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and Lender stating that, in the Lenders stating that course of performing their audit of the aforedescribed annual financial statements, there did not come to the attention of such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18 with respect to the subject fiscal year,
(cd) as soon as available, but in any event within 30 days prior to after the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretionPermitted Discretion, for the forthcoming 3 yearseighteen (18) months, year quarter by yearquarter, and for the forthcoming fiscal year, month by month, certified by the chief financial officer or chief accounting officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Domestic Subsidiaries during the period covered thereby,
(de) if and when (or within five Business Days after) filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any such Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by any Borrower or any Domestic Subsidiary of a Borrower and as if requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or any Domestic Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's or any Domestic Subsidiary of a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Domestic Subsidiary, or (iii) where any Borrower's and any Domestic Subsidiary of a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers are taking or propose to take with respect thereto.,
(gh) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on any Borrower or any Domestic Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Domestic Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Domestic Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(i) promptly upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Domestic Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements for the subject dates and periods prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Domestic Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Lender to allow Lender to consult with their independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers or their Subsidiaries that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default, Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (including, without limitation, (A) any going concern or like qualification or exception or (B) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default, Unmatured Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generallyshareholders,
(e) if and when filed by any Borrower Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower such Loan Party conducts business or is required to pay any such excise tax, (ii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Loan Party, or (iii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties,
(g) promptly after the commencement thereof, but in any event within five days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Unmatured Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gi) promptly after receipt or delivery thereof, copies of any material notices that any Loan Party receives from or sends to any Person in connection with the Senior Notes Documents or the Bridge Loan Documents and (ii) at least 3 Business Days prior to the effective date thereof, any amendments, modifications, waivers or other changes to any of the Senior Notes Documents or the Bridge Loan Documents, and
(j) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrower or any of its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a basis to be determined prior to the Activation Date consolidated and consolidating basis, and for it and its Restricted Subsidiaries and for Grey Wolf so long as Grey Wolf is a Subsidiary of Borrower, and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Borrower Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days (or, if such Person has filed a filing extension with the SEC, 50 days) in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's and ClimaChem's fiscal years,
(i) a company prepared consolidated and consolidating balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' and ClimaChem's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer or vice president/controller of Parent and of ClimaChem to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries and ClimaChem and its Subsidiaries, as the case may be,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days (or, if such Person has filed a filing extension with the SEC, 105 days) after the end of each of Parent's and ClimaChem's fiscal years,
(i) financial statements of Parent and its Subsidiaries and of ClimaChem and its Subsidiaries for each such fiscal year, prepared on a consolidated and consolidating basis, audited (in the case of the consolidated financial statements) by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (or in the case of the Parent, without any qualification as to scope of audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any continuing Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's and ClimaChem's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer or vice president/controller of Parent and of ClimaChem as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries and of ClimaChem and its Subsidiaries, as the case may be, during the period covered thereby,
(d) if and when filed by any BorrowerBorrower or by Parent or ClimaChem,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Borrower, Parent or ClimaChem with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ', Parent's and ClimaChem's federal income tax returnsreturns (if requested by Agent), and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) as soon as available, but no later than Wednesday of each week, a report listing (i) all cash distributions and advances made by EDN to any Borrower and Guarantor (other than Parent, Cherokee and Crystal City) during the preceding week and (ii) all cash distributions and advances made by any Borrower and Guarantor (other than Parent, Cherokee and Crystal City) to EDN during the preceding week, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of ClimaChem. Parent. , ClimaChem and Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Parent, ClimaChem or Borrowers that Agent reasonably may request. Each Parent, ClimaChem and each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of the a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period quarter with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole reasonable discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower, within 5 days of filing,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) in which any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on any of the properties or assets of any BorrowerCollateral, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared on both a basis to be determined prior to the Activation Date consolidated and consolidating basis. Parent agrees that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right Borrowers are obligated to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by deliver to Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Silicon Graphics Inc /Ca/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month (other than the last month of a fiscal year of Borrower) during each fiscal year of Parent's Borrower, and within 45 days after the end of the last month of each fiscal yearsyear of Borrower,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow flow, covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent an Authorized Financial Person to the effect that:
(A) the financial statements delivered hereunder under this clause (a) have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's Borrower’s fiscal years,
(i) , consolidated financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender in Lender’s sole and absolute discretion (Lender acknowledges that as of the Closing Date the firms of PricewaterhouseCoopers, Ernst & Young, KPMG, Deloitte & Touche and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are acceptable to Lender) and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within no later than 30 days prior to Business Days after the start of each of Parent's Borrower’s fiscal years,
(i) , copies of Borrowers' Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretionLender, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent an Authorized Financial Person as being such officer's Person’s good faith best estimate of the financial performance of Parent Borrower during the period covered thereby, and its Subsidiaries for each fiscal year thereafter, on a quarterly basis, certified by an Authorized Financial Person as being such Person’s good faith estimate of the financial performance of Borrower during the period covered thereby,
(d) if as soon as available, but in any event within 45 days after the end of each fiscal quarter during each fiscal year of Fortegra, a company prepared consolidated balance sheet, income statement, and when filed statement of cash flow, covering Fortegra’s and its Subsidiaries’ operations during such period, together with a certificate signed by any Borrowerthe chief financial officer, chief accounting officer, or treasurer of Fortegra to the effect that the financial statements delivered under this clause (d) have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Fortegra and its Subsidiaries,
(ie) 10-Q quarterly reportsas soon as available, Form 10-K annual reportsbut in any event within 120 days after the end of each of Fortegra’s fiscal years, consolidated financial statements of Fortegra and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s sole and absolute discretion (Lender acknowledges that as of the Closing Date the firms of PricewaterhouseCoopers, Ernst & Young, KPMG, Deloitte & Touche and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are acceptable to Lender) and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and Form 8-K current reportsstatement of cash flow and, if prepared, such accountants’ final letter to management),
(iif) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returnspromptly, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent Borrower or Fortegra to its shareholders generally,
(eg) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fh) as soon as a promptly (and in any case within two (2) Business Days) after any Authorized Person of Borrower has obtains (i) knowledge of any event or condition that constitutes the existence of a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto., or (ii) notice of any Environmental Action which reasonably could be expected to result in a Material Adverse Change, notice thereof,
(gi) (i) promptly (and in any case within two (2) Business Days), notice if any Authorized Person of Borrower or Fortegra ceases to continue to hold such position, and (ii) promptly (and in any case within five (5) Business Days), notice if more than 30% of the employees of Borrower or Fortegra involved in the servicing of the Premium Finance Agreements who have been employed for longer than six months cease, within any period of sixty (60) consecutive days, to continue to hold such positions, and
(j) upon the request of AgentLender, any other report information reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any . No Subsidiary of a Borrower, Borrower will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Fortegra Financial Corp)
Financial Statements, Reports, Certificates. Deliver Borrower shall deliver to Agent, with copies to each Lender:
: (a) as soon as available, but in any event within 30 forty-five (45) days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month of Borrower’s fiscal quarters during each of Parent's fiscal years,
(i) the Term, a company balance sheet and profit and loss statement prepared consolidated balance sheet, income statement, and statement of cash flow by Borrower covering Parent's and its Subsidiaries' Borrower’s operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes ; and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 ninety (90) days after the end of each of Parent's Borrower’s fiscal years,
(i) , financial statements of Parent and its Subsidiaries Borrower for each such fiscal yearperiod, audited by independent certified public accountants reasonably acceptable to Agent Lender (with Borrower’s accounting firm as of the date of this Agreement to be acceptable to Lender provided that such firm has been disclosed to Lender). Such financial statements shall include a balance sheet and certifiedprofit and loss statement, without any qualificationsand the accountants’ management letter, by such accountants to have been if any, and shall be prepared in accordance with GAAP (such audited financial statements to include a balance sheetGAAP. Together with the above, income statementBorrower shall also deliver Borrower’s Form 10-Qs, and statement of cash flow and10-Ks or 8-Ks, if preparedany, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, the same become available but in any event within 30 thirty (30) days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by yearfiling, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested by Lender relating to the Collateral and the financial condition of Borrowers.
(h) In addition Borrower and a certificate signed by its chief financial officer to the financial effect that all reports, statements referred to above, Borrowers agree to deliver financial statements or computer prepared on a basis information of any kind or nature delivered or caused to be determined prior delivered to the Activation Date Lender under this Section 6.4 fairly present its financial condition and that there exists on the date of delivery of such certificate to Lender no Borrower, condition or any Subsidiary event which constitutes an Event of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such informationDefault.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with ------------------------------------------- copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,; and
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and; ------------
(b) as soon as possible, but in any event within 45 days (90 days in the case of the final fiscal quarter in a fiscal year) after the end of each Parent's fiscal quarters, a detailed calculation of Borrowers' Trailing Four Quarter EBITDA;
(c) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or other independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),; and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of certifying as to the existence of any Default or Event of Default under financial covenants set forth in Section ------- 7.20,. ----
(cd) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,;
(de) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,;
(ef) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,;
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.; and
(gh) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's ’s fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders each Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's ’s fiscal years,
(i) copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year or 90 days in the case of a month that is the end of the fiscal year) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 no later than thirty (30) days prior to after the start end of each of the Parent's ’s fiscal years,
(i) copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reportsany filings or monthly reports submitted by any Borrower to the Louisiana Regulatory Authorities or any other Gaming Authority other than such filings or monthly reports submitted in the ordinary course of business,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders in their capacities as shareholders generally,
(e) if and when filed by any Borrower and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) as soon as any Borrower has knowledge that the construction of the Racino Project cannot be completed by Contractor, or has knowledge that such Borrower cannot meet its obligations under any construction documents (including, without limitation, the Fixed Price Contract), notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto,
(h) as soon as any Borrower has knowledge thereof, notice of any proposed legislation or administrative action specifically affecting any Borrower’s gaming activities or the Racino Project submitted to the floor for business before any Governmental Authority in the state of Louisiana (including the state legislature or any committee thereof),
(i) upon the delivery of any updated Enterprise Valuation and on each date monthly financial statements required pursuant to clause (a) above are delivered, a detailed calculation of the Borrowing Base; and
(j) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Old Evangeline Downs Capital Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) an inventory certificate, and
(iii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto),
D. all rent and additional rent due pursuant to any store lease have or have not been paid (and if not paid, andbroken down by store location); provided, however, that Borrowers need not report unpaid additional rent based on year end adjustments for common area expenses to the extent such additional rent is disputed by such Borrower, and E. premiums for insurance required under Section 6.9 hereof have or have not been paid.
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 Sections 7.22 or 7.23 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, 7.22 and 7.23; and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20Sections 7.22 or 7.23,
(c) as soon as available, but in any event within 30 days prior to after the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) At such times and with such frequency as is requested by Agent, such information and documentation as is determined by Agent to be appropriate based upon Agent's review and analysis of the Accounts and the information and documentation from time to time available to Agent,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(gh) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers., and
(hi) cause any guarantor of any of the Obligations to deliver its annual financial statements at the time when Borrower provides its audited financial statements to Agent and copies of all federal income tax returns as soon as the same are available and in any event no later than 30 days after the same are required to be filed by law. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a consolidated basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information. Agent hereby agrees to use its best efforts to give such Borrower at least simultaneous notice that Agent is so contacting directly any such accounting firm or service bureau.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) (I) for each fiscal quarter of Borrower and its Subsidiaries after the Closing Date through the fiscal quarter ending June 30, 2003, as soon as available, but in any event within 45 days after the end of such fiscal quarter, and (II) commencing with July 2003, as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower’s fiscal quarters in a fiscal yearquarters) after the end of each month thereafter during each of Parent's Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Parent and Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.22 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.207.22, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's Borrower’s fiscal years,
(i) consolidated financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.22,
(c) as soon as available, but in any event within 30 before 45 days prior to after the start of each of Parent's Borrower’s fiscal years,
(i) , copies of Borrowers' Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by 1 year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent Borrower as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Parent or any Borrowerof its Subsidiaries,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent or any Borrower of its Subsidiaries with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent’s or any of its Subsidiaries’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information copies of Parent’s financial statements, proxy notices and reports that is are provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Parent or its Subsidiaries and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower Parent or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any Borrower's Parent’s or its Subsidiaries’ failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerParent or its Subsidiaries, or (iii) where any Borrower's Parent’s or its Subsidiaries’ failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 Business Days after the service of process with respect thereto on Parent or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Parent or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Parent or such Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(h) upon the reasonable request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Parent or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared on a consolidated basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that their Parent and Borrower each agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Parent or its Subsidiaries Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's Borrowers' fiscal years,
(i) a company company-prepared unaudited consolidated (and, to the extent available, consolidating) balance sheet, income statement, and statement of cash flow covering Parent's and its SubsidiariesBorrowers' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent an Authorized Person to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarter and year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date)Borrowers, and
(C) B. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's Borrowers' fiscal years,
(i) consolidated financial statements of Parent ARG and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's Borrowers' fiscal years,
(i) , copies of Borrowers' ARG's consolidated Projections, comparable in form and substance (including as to scope and underlying assumptions) assumptions to the Closing Date Business Plan or in scope and containing underlying assumptions reasonably satisfactory to Agent, in its sole discretionLender, for the forthcoming 3 years2 years or lesser period of time until the Maturity Date, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent an Authorized Person as being such officerAuthorized Person's good good-faith best estimate of the financial performance of Parent and its Subsidiaries Borrowers during the period covered thereby,
(d) if and when filed by any BorrowerBorrower or its Subsidiaries, as applicable,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) if requested by Lender, copies of Borrowers' and its Subsidiaries' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent any Borrower to its shareholders generally,
(e) if and when filed by any Borrower or any of its Subsidiaries and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any such Borrower or such Subsidiary conducts business or is required to pay any such excise tax, (ii) where any such Borrower's or such Subsidiary's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Subsidiary, or (iii) where any such Borrower's or such Subsidiary's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has Borrowers have knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(g) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their respective Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a basis to be determined prior consolidated (and, to the Activation Date extent available, consolidating) basis and each agrees that no Borrower, or any Subsidiary of a Borrower, any Borrower will have a fiscal year different from that of ParentARG. Borrowers agree ARG agrees on behalf of itself and its Subsidiaries that their its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender (with a copy to Borrowers) whatever financial information concerning Borrowers any Borrower or its Subsidiaries that Agent Lender reasonably may request. Each Borrower ARG waives for itself and its Subsidiaries the right to assert a confidential relationship, if any, it they may have with any accounting firm or service bureau in connection with any information requested by Agent Lender pursuant to or in accordance with this Agreement, and agree agrees that Agent Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate Compliance Certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and,
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto),
(D) all rent, tax, and insurance payments required to be made hereunder have been timely paid, and
(DE) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period month with the applicable financial covenants contained in Section 7.207.18, andand demonstrating such compliance in reasonable detail,
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent Lender and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to after the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to AgentLender, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered therebythereby (it being understood that Lender may agree to revise financial covenants set forth in Section 7.18 (but shall not be under any obligation to do so) and that Lender may create or expand reserves (in its Permitted Discretion) as a result of its review of such Projections),
(d) if and when filed by any Parent or Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's and Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Parent or its Subsidiaries and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower Parent or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any BorrowerParent's or its Subsidiaries' failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerParent or its Subsidiaries, or (iii) where any BorrowerParent's or its Subsidiaries' failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change,
(h) as soon as available, but in any event within 45 days after the end of each of Parent's fiscal years, interim "draft" financial statements, inclusive of subsequent periods until the audited year-end statements are delivered to Lender, and
(i) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Parent or its Subsidiaries. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that their Borrower agrees to cooperate with Lender to allow Lender to consult with its independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Parent or its Subsidiaries Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, Agent with copies to each Lender:
(a) within fifteen (15) days of the end of the previous month, a report which shall contain a comparison of the prior month showing actual performance and any variance of such actual performance from the projected performance in the Budget, together with a certificate signed by the chief financial officer of the Parent to the effect that such information is true and correct,
(b) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) an inventory certificate, and
(iii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), andor, if not so true and correct, a description of such inaccuracy,
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto);
D. all rent and additional rent due pursuant to any store lease have or have not been paid (and if not paid, broken down by store location); provided, however, that Borrowers need not report unpaid additional rent based on year end adjustments for common area expenses to the extent such additional rent is unknown to or disputed by such Borrower, and
(D) there are no unpaid payroll E. premiums for insurance required under Section 7.9 hereof have or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, andbeen paid.
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 8.23 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance or the absence of compliance at the end of such period with the applicable financial covenants contained in Section 7.20, 8.23; and
(bc) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (other than in respect of the filing of the Cases or a going concern qualification), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants either do not have knowledge of the existence of any Default or Event of Default under Section 7.208.23 or, to their knowledge, the extent of such Default or Event of Default,
(cd) as soon as availableon or before fiscal month ending April 30, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) 2005, copies of Borrowers' ’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 yearsperiod commencing May 1, year by year, and for 2005 through the forthcoming fiscal yearTermination Date, month by month, certified by the chief financial officer of Parent as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,;
(de) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(ef) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) at such times and with such frequency as is requested by Agent, such information and documentation as is determined by Agent to be appropriate based upon Agent’s review and analysis of the Accounts and the information and documentation from time to time available to Agent,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(gi) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers., and
(hj) cause any guarantor of any of the Obligations to deliver its annual financial statements at the time when Borrower provides its audited financial statements to Agent and each Tranche B Lender and copies of all federal income tax returns as soon as the same are available and in any event no later than 30 days after the same are required to be filed by law. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a consolidated basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and the Lenders and to release to Agent and the Lenders whatever financial information concerning Borrowers that Agent or the Lenders reasonably may request. Borrowers further agree to permit the Agent and the Lender or any other designated representative of the Agent or Lenders to visit and inspect any of the properties of the Borrowers, to examine the books of account of the Borrowers (and to make copies thereof and extracts therefrom), and to discuss the affairs, finances and accounts of the Borrowers with, and to be advised as to the same by, their officers. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent and the Lenders pursuant to or in accordance with this Agreement, and agree agrees that Agent and Lenders may contact directly any such accounting firm or service bureau in order to obtain such information. Agent and the Lenders hereby agree to use its best efforts to give such Borrower at least simultaneous notice that Agent or the Lenders is so contacting directly any such accounting firm or service bureau.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent’s fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's ’s and its Subsidiaries' ’ operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Compliance Certificate to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers Obligors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificatefinancial statements, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) or, to the extent that such representations and warranties are not true and correct in all material respects on and as of such date, describing such inaccuracy as to which he or she may have knowledge and what action, if any, Obligors have taken, are taking, or propose to take with respect thereto), and C. on and as of the date of such financial statements, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers action, if any, Obligors have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month quarter that is the date on which a the financial covenant in Section 7.20 7.17 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable fiscal quarter with such financial covenants contained in Section 7.20, andcovenant,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's ’s fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.17 as of the end of such fiscal year,
(c) as soon as available, but in any event within no later than 30 days prior to after the start of each of Parent's ’s fiscal years,
(i) , copies of Borrowers' Projectionsthe Projections for such fiscal year, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by monthPermitted Discretion, certified by the chief financial officer of Parent as being such officer's prepared in good faith best estimate based on assumptions believed to be reasonable at the time of the financial performance of Parent and its Subsidiaries during the period covered therebypreparation thereof,
(d) if and when filed by any BorrowerObligor,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) , and any other filings made by any Borrower Obligor with the SEC or SEC, it being understood that, as to any comparable Governmental Authority having regulatory jurisdiction over such filings, Obligors may deliver the same by electronic mail (to such email address(es) as may be provided for such purpose from time to time by Agent), including any Foreign Borrowersuch electronic mail specifying the applicable filing,
(iiiii) copies of Borrowers' Obligors’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iviii) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by as soon as available, but in any Borrower and as requested by Agentevent within 30 days after the end of each quarter during each of Parent’s fiscal years, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower Obligor conducts business or is required to pay any such excise tax, (ii) where any Borrower's such Obligor’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or such Obligor and (iii) where any Borrower's such Obligor’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower any Responsible Officer of any Obligor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers Obligors propose to take with respect thereto., and
(g) upon promptly after the request commencement thereof, but in any event within 3 Business Days after the service of Agentprocess with respect thereto on any Obligor or any Subsidiary of any Obligor, notice of all actions, suits, or proceedings brought by or against any other report Obligor or any Subsidiary of any Obligor before any Governmental Authority which, if determined adversely to such Obligor or such Subsidiary, reasonably requested relating could be expected to the financial condition of Borrowers.
(h) result in a Material Adverse Change. In addition to the financial statements referred to above, Borrowers agree to deliver the financial statements described in Sections 6.3(a)(i) and 6.3(b)(i) prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers Obligors agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Obligors as to the timing of such consultations and permit Obligors an opportunity to be present thereat or to otherwise participate therein) and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Obligors or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (SMART Modular Technologies (DE), Inc.)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated and consolidating balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed on behalf of Parent by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier datedate and except for changes permitted under the Loan Documents and reflected in an updated schedule delivered by the Borrowers), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certifiedcertified (other than as to consolidating statements), without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a consolidated and consolidating balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified on behalf of Parent by the chief financial officer of Parent as being such officer's its good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders noteholders generally,
(e) if and when filed by any Borrower or any Domestic Subsidiary of a Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or any Domestic Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's or any Domestic Subsidiary of a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Domestic Subsidiary, or (iii) where any Borrower's or any Domestic Subsidiary of a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Borrower or any Domestic Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Domestic Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Domestic Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Domestic Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Domestic Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Phibro Animal Health Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers Obligors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers Parent and Borrower have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section SECTION 7.20, and,
(b) as soon as available, but in any event within 90 100 days after the end of each of Parent's fiscal years,
(i) , financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days prior to after the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Parent's Projections, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretion, for the forthcoming 3 2 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any BorrowerObligor,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower Obligor with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower Obligor and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower Obligor conducts business or is required to pay any such excise tax, (ii) where any BorrowerObligor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerObligor, or (iii) where any BorrowerObligor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Parent or Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers Parent and Borrower propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested by Agent relating to the financial condition of Borrowers.
(h) Parent and Borrower. In addition to the financial statements referred to above, Borrowers agree Parent agrees to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no BorrowerObligor, or any Subsidiary of a Borroweran Obligor, will have a fiscal year different from that of Parent. Borrowers Parent and Borrower agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Obligors that Agent reasonably may request. Each of Parent and Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 three fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering ParentBorrower's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and,
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders Borrower stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20Sections 7.21 or 7.22,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Factory Card Outlet Corp)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 SECTION 7.21 is to be tested, a Compliance Certificate demonstrating, in -66- reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20SECTION 7.21, and
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal yearsyears commencing with its fiscal year ended March 31, 2003,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20SECTION 7.21,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month quarter by monthquarter, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the -67- properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto., and
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Peregrine Systems Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of ParentBorrower's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' the operations of the Borrower Parties during such period,
(ii) a certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,the Borrower Parties;
(B) the representations and warranties of Borrowers the Loan Parties contained in this Agreement and the other Loan Documents are were true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date Closing Date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties were true and correct on and as of such earlier date), ; and
(C) there does not exist any condition or event that constitutes a Default, Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are taking, is taking or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial the covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andsuch covenant;
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent and its Subsidiaries the Borrower Parties for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualification (including, without limitation, (A) any going concern or like qualification or exception or (B) any qualification as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,7.18;
(c) as soon as available, but in any event within 30 days prior to the start of each of ParentBorrower's fiscal years,
(i) , copies of Borrowers' Borrower's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby,;
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, reports and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,or to the holders of the New Notes;
(e) if and when filed by any Borrower Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower such Loan Party conducts business or is required to pay any such excise tax, (ii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, such Loan Party or (iii) where any Borrowersuch Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,;
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties;
(g) promptly after the commencement thereof, but in any event within five (5) days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change;
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Unmatured Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.;
(gi) promptly after receipt or delivery thereof, copies of any material notice that any Borrower Party receives from or sends to any Person in connection with the Capital Restructuring Documents and (ii) at least 3 Business Days prior to the effective date thereof, any amendment, modification, waiver or other change to any of the Capital Restructuring Documents; and
(j) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) any of the Borrower Parties. In addition to the financial statements referred to above, Borrowers agree Borrower agrees to deliver financial statements prepared on both a basis to be determined prior to the Activation Date consolidated and consolidating basis, and for it and its Restricted Subsidiaries and for Grey Wolf so long as Grey Wolf is a Subsidiary of Borrower, and agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers Borrower that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (or 45 days days, in the case of a month that is the end of one of the first 3 Ultimate Parent’s fiscal quarters in a fiscal yearquarters) after the end of each fiscal month during each of Ultimate Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Ultimate Parent's ’s and its Subsidiaries' ’ current period operations during and year to date operations with a comparison to projections for such periodyear and for prior year,
(ii) a certificate Compliance Certificate signed by the chief financial officer of Parent Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Ultimate Parent and its Subsidiaries,
(B) to his or her Knowledge, the representations and warranties of Borrowers each Credit Party contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier datedate and except to the extent that such representations and warranties have become untrue or incorrect solely as a result of changes permitted by this Agreement), and,
(C) to his or her Knowledge, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers the Credit Parties have taken, are taking, or propose to take with respect thereto),
(D) as of the most recently ended Computation Period, the Borrower complies with the covenants contained in Section 7.16 (and attaching a schedule showing the calculation of such covenants for such Computation Period), and
(DE) there a statement that, to his or her Knowledge, each Credit Party and its Subsidiaries are no unpaid payroll not delinquent with respect to all rent, tax and insurance payments (other than any rent, tax or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which insurance payment subject to a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andPermitted Protest).
(b) as soon as available, but in any event within 90 days after the end of each of Parent's Borrower’s fiscal years,
(i) , consolidated financial statements of Ultimate Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (other than a qualification as to going concern or other similar qualification solely as a result of the impending maturity of the Term Loans and/or the Revolver Debt), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,;
(c) as soon as available, but in any event within 30 days prior to after the start of each of Parent's Borrower’s fiscal years,
(i) , copies of Borrowers' Borrower’s Projections, in form and substance detail (including as to scope and underlying assumptionsscope) reasonably satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by monthmonth (or by such shorter periods as are reasonably requested by the Agent), certified by the chief financial officer of Parent Borrower and approved by the Board of Directors as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries Borrower during the period covered thereby, it being understood that such Projections as to future performance are not to be viewed as facts and that actual results during the periods covered by the Projections may differ from the projected results and no assurances can be given that the Projections will be realized,
(d) if and when filed by any BorrowerBorrower or Ultimate Parent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower or Ultimate Parent with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,SEC, and
(iii) upon reasonable request of Agent, copies of Borrowers' Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generallyService,
(e) if and when filed by any Borrower Credit Party and as requested by Agent, satisfactory evidence of payment payment, and extent of nonpayment (if applicable), by such Credit Party of applicable excise taxes in each jurisdiction in which (i) any Borrower such Credit Party conducts business or is required to pay any such excise tax, tax (ii) where any Borrower's such Credit Party’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Credit Party, or (iii) where any Borrower's such Credit Party’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower promptly after any Credit Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose such Credit Party proposes to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Credit Party, notice of all actions, suits, or proceedings brought by or against any Credit Party before any Governmental Authority which, reasonably could be expected to result in a Material Adverse Change,
(h) promptly notify Agent in writing of any material default under any of its leases (irrespective of whether such material default could reasonably be expected to cause a Material Adverse Change),
(i) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.any Credit Parties, provided that such reports shall not be overly burdensome for any Credit Party to prepare, and
(hj) In addition concurrently with delivery thereof to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior Revolving Credit Agent (but only to the Activation Date extent not duplicative of items required hereunder), delivery of the material notices, certificates (including borrowing base certificates), reports and that no Borrower, or any other information required by Sections 6.2 and 6.3 of the Revolver Agreement. No Subsidiary of a Borrower, Ultimate Parent will have a fiscal year different from that of Ultimate Parent. Borrowers agree that their Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers any Credit Party that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Borrower’s fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet, sheet and income statement, and statement of cash flow covering Parent's Borrower’s and its Subsidiaries' ’ operations during such period,;
(ii) a certificate Monthly Compliance Certificate signed by the chief financial officer Vice President and Chief Financial Officer of Parent to the effect that:
(A) the financial statements delivered at any quarter end hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and all financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries,
(B) the representations and warranties of Borrowers Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and,
(iii) unaudited, unit-level profit and loss statements for such month, for each month operating shop of each Borrower and Guarantor, in each instance indicating whether it is owned or leased,
(b) as soon as available, but in any event within 45 days after the end of each of Borrower’s fiscal quarters, for each quarter that is the date on which a financial covenant in Section 7.20 7.15 is to be tested, a Quarterly Compliance Certificate signed by the Vice President and Chief Financial Officer of Parent demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.15,
(bc) as soon as available, but in any event within 30 days prior to the start of each of Borrower’s fiscal years, copies of the Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the forthcoming fiscal year, quarter by quarter, and an Annual Compliance Certificate signed by the Vice President and Chief Financial Officer of Parent as being such officers’ good faith best estimate of the financial performance of Borrower and its Subsidiaries during the period covered thereby,
(d) as soon as available, but in any event within 90 days after the end of each of Parent's Borrower’s fiscal years,
(i) financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.15,
(ce) as soon as available, but in any event within 30 days prior to the start 2 Business Days of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year filing by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent Borrower to its shareholders generally,
(ef) if and when filed by any Borrower or its Subsidiaries and as requested by AgentLender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s or its Subsidiaries’ failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any BorrowerBorrower or its Subsidiaries, or (iii) where any Borrower's ’s or its Subsidiaries’ failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(fg) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose Borrower proposes to take with respect thereto.,
(gh) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Borrower or any of its Subsidiaries, notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(i) upon the request of AgentLender, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and Borrower or its Subsidiaries. Borrower agrees that no Borrower, or any Subsidiary of a Borrower, Borrower will have a fiscal year different from that of ParentBorrower. Borrowers agree that their Borrower agrees to cooperate with Lender to allow Lender to consult with its independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent Lender and to release to Agent Lender whatever financial information concerning Borrowers that Agent Borrower Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a quarters, including its fiscal year-end) after the end of each month during each of Parent's fiscal years,
(i) a company Parent prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate of Parent signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarterly (or more frequent) adjustments for reserves for price protection, warranties and returns consistent with past practices year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers Companies contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers Companies have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 SECTION 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, andSECTION 7.18,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that nothing came to the attention of such accountants do not have knowledge that caused such accountants to believe that the Borrowers failed to comply with the terms, covenants, provisions or conditions of the existence of any Default or Event of Default under Section 7.20SECTION 7.18 insofar as they relate to accounting matters,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of BorrowersCompanies' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 three years, year by year, and for the forthcoming fiscal year, month by month, certified by Parent and signed by the chief financial officer of Parent as being such officerParent's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(ii) a copy of Capital Expenditure budget for the forthcoming year, which budget shall be in the form and substance acceptable to Agent, and
(iii) a schedule of the projected release dates for videogames, which schedule shall include for each videogame, the title of the game, the release date, projected net sales by unit and projected net sales by quarter,
(iv) a schedule of (A) the projected revenue by fiscal quarter generated from the top 5 videogames to be sold by the Companies during the upcoming fiscal year (or the top 5 videogames and Mortal Kombat if Mortal Kombat is not in the top 5 videogames by revenue generated) and (B) the videogame titles comprising 70% of projected total annual revenue from videogame sales during the upcoming fiscal year,
(d) as soon as available, but in any event within 30 days after the end of each of the Parent's fiscal quarters, revised Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its discretion, for the current fiscal year, month by month, certified by Parent and signed by the chief financial officer of Parent as being Parent's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby, incorporating the actual results of all prior months of such fiscal year as well as a comparison of actual year to date results versus the Projections delivered for such fiscal year pursuant SECTION 6.3(c) hereof.
(e) if and when filed by any Borrower,
Company, (i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign Borrower,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenue, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.
(g) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 Parent's fiscal quarters in a fiscal yearquarters) after the end of each month during each of Parent's fiscal years,
(i) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month month, quarter, or year that is the date on a month, quarter, or year as to which a financial covenant in Section 7.20 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and7.18,
(b) as soon as available, but in any event within 90 days after the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),, and
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.207.18,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) , copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, reports on Form 10-K Q, annual reportsreports on Form 10-K, and current reports on Form 8-K current reportsK,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower or any Subsidiary of a Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any Borrower or any Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's or any Subsidiary of a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowersuch Borrower or such Subsidiary, or (iii) where any Borrower's or any Subsidiary of a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on any Borrower or any Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against any Borrower or any Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Borrower or such Subsidiary, reasonably could be expected to result in a Material Adverse Change, and
(h) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) Borrowers or their Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and agree that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree that to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Aegis Communications Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 45 days (45 60 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's ’s fiscal years,
(i) a company prepared consolidated balance sheet, sheet and income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period, on both a consolidated and consolidating basis for Parent, its Subsidiaries and the Domestic Business Unit, in form and substance reasonably satisfactory to Agent,
(ii) a company prepared statement of cash flow, covering operations on a year to date basis, on a consolidated basis for Parent in form and substance reasonably satisfactory to Agent,
(iii) a certificate signed by the chief executive officer, president, chief financial officer officer, treasurer or controller of Parent Administrative Borrower to the effect that:
(A) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iiiiv) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 120 days after the end of each of Parent's ’s fiscal years,
(i) , financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' ’ letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within at least 30 days prior to the start of each of Parent's ’s fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, for the Parent and the Domestic Business Unit, in each case certified by the chief executive officer, president, chief financial officer officer, treasurer or controller of Parent Administrative Borrower as being such officer's ’s good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower, within five days of such filing,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' ’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, within five days of the later of the filing or such request, satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's ’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's ’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly upon any Borrower obtaining knowledge thereof, notice of any price decrease (without consideration of price protection agreements) established by any Material Vendor, affecting the value of Eligible Inventory included in the Borrowing Base by more than 5%,
(h) promptly upon the Parent obtaining knowledge or notice thereof, notice of any demand for payment pursuant to the Parent’s guarantee of trade payables and real property operating leases of any Foreign Subsidiary,
(i) promptly upon the Parent obtaining knowledge or notice thereof, notice of any default, event of default, or request for payment from Parent pursuant to any Permitted Foreign Subsidiary Credit Facility that Parent has guaranteed, and
(j) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) . In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis to be determined prior to the Activation Date and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent, other than certain Foreign Subsidiaries, but only to the extent such Foreign Subsidiary’s jurisdiction of organization requires a different fiscal year by law. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request, provided, however, that Administrative Borrower will be provided with reasonable notice of the time and place for such communication and have the opportunity to be present during such communication. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years,
(iA) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Parent's and its Subsidiaries' operations during such period, and (B) a company prepared income statement for each retail convenience store owned by a Loan Party during such period,
(ii) a certificate signed by the chief financial officer of Parent to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) ), or as otherwise shall be acceptable to Agent in its Permitted Discretion, and fairly present in all material respects the financial condition of Parent and its Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have each Borrower has taken, are is taking, or propose proposes to take with respect thereto), and
(D) there are no unpaid payroll or payroll taxes that have become due from any Borrower or Guarantor and stating the accrued amount of unpaid payroll and payroll taxes that have not yet become due, and
(iii) for each month that is the date on which a financial covenant in Section SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section SECTION 7.20, and
(b) as soon as available, but in any event within 90 days after the end of each of ParentBorrower's fiscal years,
(i) financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualificationsqualifications (other than a going-concern qualification), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section SECTION 7.20,
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretionPermitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries Borrowers during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC or any comparable Governmental Authority having regulatory jurisdiction over any Foreign BorrowerSEC,
(iii) copies of Borrowers' each Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or, with respect to any Foreign Borrower, any comparable Governmental Authority responsible for internal revenueService, and
(iv) any other information that is provided by Parent any Borrower to its shareholders generally,
(e) if and when filed by any Borrower each Loan Party and as requested by Agent, reasonably satisfactory evidence of payment of applicable excise taxes in each jurisdiction jurisdictions in which (i) any Borrower each Loan Party conducts business or is required to pay any such excise tax, (ii) where any Borrowereach Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrowereach Loan Party, or (iii) where any Borrowereach Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a any Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto.,
(g) promptly after submission to any Government Authority, (i) all material documents and information furnished to such Government Authority and (ii) a copy of the cover letter and a summary of all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority; the Loan Parties agree promptly to furnish copies of any documents or information described in any such summary and to furnish additional copies of such submissions to any consultant or adviser to the Lenders or the Agent as the Agent may reasonably request,
(i) as soon as possible and in any event (A) within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Benefit Plan has occurred, (B) within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which Parent or such ERISA Affiliate propose to take with respect thereto, (ii) promptly and in any event within three Business Days after receipt thereof by Parent or any ERISA Affiliate thereof from the PBGC, copies of each notice received by Parent or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (iii) promptly and in any event within 10 Business Days after the filing thereof with the Internal Revenue Service if requested by Lender, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the IRC has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within three days after receipt thereof by Parent or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by Parent or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (vi) promptly and in any event within 10 Business Days after Parent or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by Parent or any ERISA Affiliate thereof,
(i) as soon as available and in any event within 5 Business Days after the execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with any Material Contract,
(j) promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any of the Loan Parties, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which if adversely determined could have a Material Adverse Change, and
(k) upon the request of Agent, any other report reasonably requested relating to the financial condition of Borrowers.
(h) In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a basis to be determined prior to the Activation Date and any Loan Party. Parent agrees that no Borrower, or any Subsidiary of a Borrower, Parent will have a fiscal year different from that of Parent. Borrowers agree Each Borrower agrees that their its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers such Borrower that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information reasonably requested by Agent pursuant to or in accordance with this Agreement, and agree agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Dairy Mart Convenience Stores Inc)