Financial Statements, Reports, etc. The Borrowers shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request: (i) As soon as available and in no event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments); (ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof; (iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03; (iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date; (v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto; (vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally; (vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement; (viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h); (ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility; (x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and (xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Argosy Gaming Co)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, Agent with sufficient copies for each Lender,
(a) as soon as available, but in any event within 90 days after the end of each fiscal year of Aceto, the followingaudited consolidated balance sheet of Aceto and its Subsidiaries as of the end of such year and the related audited consolidated statements of income, shareholders equity and cash flow for such year, setting forth in each case in comparative form the respective figures as of the end of and for the previous fiscal year, and accompanied by a report thereon of BDO ▇▇▇▇▇▇▇ LLP or other independent certified public accountants of recognized standing selected by Aceto and acceptable to the Required Lenders (the “Auditor”), which report shall be unqualified and which statements shall be prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis and (ii) the corresponding consolidating balance sheets of Aceto and its Subsidiaries and the consolidating statements of income for Aceto and its Subsidiaries, all prepared under the supervision of the Chief Financial Officer in accordance with Generally Accepted Accounting Principles;
(b) as soon as available, but in any event not later than 45 days after the end of the first, second and third fiscal quarters of Aceto, the consolidated and consolidating unaudited interim consolidated and consolidating balance sheet of Aceto and its Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated and consolidating statements of income, shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, in each case prepared by the Chief Financial Officer in accordance with Generally Accepted Accounting Principles, applied on a consistent basis;
(c) certificates prepared and signed by the Chief Financial Officer with each delivery required by clause (a) and clause (b), as to whether or not, as of the close of such preceding period and all times during such preceding period, Aceto and its Subsidiaries were in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Chief Financial Officer shall have obtained knowledge of any Default or Event of Default, it shall disclose in such form certificate such Default or Event of Default and such the nature thereof;
(d) at all times indicated in clauses (a) above a copy of the management letter, if any, prepared by the Auditor;
(e) within 75 days after the end of each fiscal year of Aceto, the Companies’ annual operating/business plans for the upcoming fiscal year, in form, substance and detail as satisfactory to the Administrative Agent or and the Required Lenders shall reasonably request:Lenders;
(if) As soon as available and in no event later than within forty-five (45) days after the last day of each of the first three fiscal quarters end of each fiscal year (a) a schedule of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly Material Contracts in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or effect as of the last day of such quarter or year fiscal year, and (b) an updated organization chart of Aceto including information as the case may be), the calculation to ownership of the financial ratios and tests provided in SECTION 5.03all Subsidiaries;
(ivg) As soon as available and in no event later than within forty-five (45) days after the last day end of each fiscal quarter quarter, (i) a calculation of Argosy, a certificate Consolidated EBITDA and consolidated revenue of the chief financial officer or treasurer of Argosy Immaterial Subsidiaries for such fiscal quarter ended and (ii) a "PRICING CERTIFICATE"report identifying (x) which sets forth the calculation cost of the Total Funded Debt remediation incurred with respect to EBITDA Ratio as the Carlstadt Real Property during such fiscal quarter ended, (y) the total of such costs incurred to date, and (z) the outstanding Indebtedness, if any, identified in Section 7.02(m);
(vh) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than within forty-five (45) days after the commencement of second fiscal quarter and each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, includinga list of all locations where the Companies maintain their inventory and specifying whether such location is a leased location, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreementowned location or a warehouse;
(viiii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days promptly after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect submission to any Loan Party government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not result in any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed adverse action to be taken by any Loan Party with any Gaming Authority or other Governmental Authority with respect such agency which action could reasonably be expected to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, have a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesMaterial Adverse Effect; and
(xij) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreements, certificates, opinions, statements, documents business affairs and information relating to the operations or condition (financial or otherwise) of Argosy the Companies or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Subsidiaries as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Aceto Corp)
Financial Statements, Reports, etc. The Borrowers shall Borrower and the Guarantors will maintain, for the Consolidated Group, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(i) As as soon as available and available, but in no any event not later than forty-five (45) 60 days after the last day of each of the first three fiscal quarters close of each fiscal year of Argosyquarter, for the Consolidated Group an unaudited quarterly financial statement (including a copy of the Financial Statements of Argosy balance sheet and its Subsidiaries prepared on a consolidated basis income statement) for such quarter period and for the portion of the fiscal year to datethrough the end of such period, setting forth in each case in comparative form the figures for the previous year, all certified by the president or Equity Inns' chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)or chief accounting officer;
(ii) As soon as available and available, but in no any event not later than one hundred, twenty (120) 60 days after the close of each fiscal year quarter, for the Consolidated Group, related reports in form and substance satisfactory to the Lenders, all certified by Equity Inns' chief financial officer or chief accounting officer, including a statement of ArgosyFunds From Operations, (A) copies calculation of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsfinancial covenants described below, a Default has occurred and is continuingsummary listing of capital expenditures, a statement report listing and describing all newly acquired Properties, including their cash flow, cost and secured Indebtedness, if any, summary property information for all Properties, and such other information as may be requested to the nature thereofevaluate any other certificates delivered hereunder;
(iii) Contemporaneously As soon as publicly available but in no event later than the date such reports are to be filed with the quarterly Securities Exchange Commission, copies of all Form 10Ks, 10Qs, 8Ks, and year-end Financial Statements required any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information filed with the Securities Exchange Commission along with all other materials distributed to shareholders and limited partners by the foregoing clauses (i) and (ii)Borrower or the Guarantors, including a compliance certificate copy of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03Equity Inns annual report;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and but in any event not later than forty-five sixty (4560) days after the commencement end of each of the first three fiscal quarters, and not later than 90 days after the close of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, includingreports in form and substance satisfactory to the Lenders, certified by Equity Inns' chief financial officer or chief accounting officer containing Net Operating Income and hotel operating statements from the operators under the Permitted Operating Leases for each individual Property owned by the Borrower or a Wholly-Owned Subsidiary and included in each casethe Borrowing Base, projected balance sheets, statements of income provided that the Borrower and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and Guarantors shall in no event later than ten (10) days prior be obligated to the acquisition by furnish any Loan Party of such hotel operating statement any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later earlier than five (5) Business Days after the Borrower's receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facilityapplicable operator;
(xv) Not later than sixty (60) days after the end of each of the first three fiscal quarters, and not later than ninety (90) days after the end of the fiscal year, a compliance certificate in substantially the form of Exhibit I hereto ("Compliance Certificate") signed by the Operating Partnership and Equity Inns' chief financial officer or chief accounting officer confirming that the Borrower and the Guarantors are in compliance with all of the covenants of the Loan Documents, showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) and stating that to such officer's best knowledge, there is no other Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof;
(vi) As soon as possible and in no any event later than five (5) within 10 Business Days after any member of the receipt thereof Consolidated Group knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by Argosy the chief financial officer of Equity Inns, describing said Reportable Event and within 20 days after such Reportable Event, a statement signed by such chief financial officer describing the action which the Consolidated Group proposes to take with respect thereto; and (b) within 10 Business Days of receipt, any notice from the Internal Revenue Service, PBGC or Department of Labor with respect to a Plan regarding any excise tax, proposed termination of its Subsidiariesa Plan, prohibited transaction or fiduciary violation under ERISA or the Code which could result in any liability to the Consolidated Group in excess of $100,000; and (c) within 10 Business Days of filing, any Form 5500 filed with respect to a Plan by any member of the Consolidated Group which includes a qualified accountant's opinion.
(vii) As soon as possible and in any event within 30 days after receipt, a copy of (a) any noticenotice or claim to the effect that any member of the Consolidated Group is or may be liable to any Person as a result of the release by such entity or any other Person of any toxic or hazardous waste or substance into the environment, summons, citations or other written communications concerning and (b) any actual, alleged, suspected or threatened material notice alleging any violation of any Environmental Lawfederal, state or local environmental, health or safety law or regulation by any member of the Consolidated Group, which, in either case, could be reasonably likely to have a Material Adverse Effect;
(viii) Promptly upon the distribution thereof to the press or the public, copies of all press releases;
(ix) As soon as possible, and in any event within 10 days after the Borrower knows of any fire or other casualty or any pending or threatened condemnation or eminent domain proceeding with respect to all or any material liability portion of Argosy any Collateral Pool Asset, a statement describing such fire, casualty or any of its Subsidiaries for Environmental Damages; andcondemnation and the action Borrower intends to take with respect thereto;
(xix) Such other instrumentsinformation (including, agreementswithout limitation, certificates, opinions, statements, documents and information relating to the operations or condition (non-financial or otherwiseinformation) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request. The request for a reappraisal of any Collateral Pool Asset, as long as such Collateral Pool Asset has not been the subject of an Appraisal in the preceding 12 months, is hereby deemed reasonable; and
(xi) Within ten (10) Business Days after the request of the Administrative Agent, a financial statement showing Adjusted EBITDA, Ground Lease Expense, Fixed Charges and Interest Expense for the period of twelve (12) full months ending immediately prior to the date of such request.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Equity Inns Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative AgentAgent (which will promptly furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, commencing with sufficient copies for each Lenderthe fiscal year ended December 31, the following2016, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon a consolidated balance sheet and related consolidated statements of operations, cash flows and owners’ equity showing the financial position of Holdings and the Subsidiaries as available of the close of such fiscal year and the consolidated results of their operations during such year, with all consolidated statements audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in no event later any material respect (other than fortysolely with respect to, or expressly resulting solely from, an upcoming maturity date of any Indebtedness)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of Holdings and the Subsidiaries on a consolidated basis in accordance with GAAP and (ii) a management report setting forth (A) Consolidated EBITDA of Holdings for such fiscal year, showing variance, by dollar amount and percentage, from amounts for the previous fiscal year, (B) such key operational information as the Canadian Borrower and Administrative Agent may agree to, and (C) a management discussion and analysis of the financial condition and results of operations of Holdings for such fiscal year, as compared to amounts for the previous fiscal year (it being understood that the delivery by Holdings of (i) financial information for such fiscal year that would be required to be contained in a filing with the SEC on Form 20-five F if Holdings were required to file such forms, (45ii) whether or not required by the forms referred to in clause (i) above, a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (iii) the opinion of accountants referred to above, shall satisfy the requirements of this Section 5.04(a));
(b) within 50 days after the last day end of each of the first three fiscal quarters of each fiscal year commencing with the fiscal quarter ending March 31, 2017, (i) a consolidated balance sheet and related consolidated statements of Argosy, a copy operations and cash flows showing the financial position of the Financial Statements of Argosy Holdings and its Subsidiaries prepared as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year (cash flow is for cumulative period only), all certified by a Financial Officer of Holdings, on behalf of Holdings, as fairly presenting, in all material respect, the financial position and results of operations of Holdings and its Subsidiaries on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
adjustments and the absence of footnotes) and (ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, a management report setting forth (A) copies Consolidated EBITDA of Holdings for such fiscal quarter and for the then elapsed portion of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 fiscal year, audited showing variance, by independent certified public accountants of recognized national standing acceptable to dollar amount and percentage, from amounts for the Administrative Agentcomparable periods in the previous fiscal year, (B) such key operational information as the Canadian Borrower and the Administrative Agent may agree to, and (C) a management discussion and analysis of the financial condition and results of operations for such fiscal quarter as compared to the comparable period in the previous fiscal year;
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of a Financial Officer of Holdings on behalf of Holdings (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the fiscal period ending December 31, 2016, (iii) setting forth computations in reasonable detail demonstrating compliance with the covenant contained in Section 6.09, if then applicable, and (iv) setting forth computations of the Applicable Amounts then available, and (y) the related consolidating financial information reflecting the adjustments necessary in reasonable detail to eliminate the accounts of Unrestricted Subsidiaries;
(d) promptly after the same become publicly available, copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) all periodic and other publicly available reports, proxy statements and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any LenderAgent, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports other materials filed by Argosy Holdings or any of its Subsidiaries with any securities exchange the SEC, or the United States Securities and Exchange Commission (including all 10-Qafter an initial public offering, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries distributed to its security holdersstockholders generally, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallyas applicable;
(viie) As soon as available, and in any event not later than forty-five (45) within 90 days after the commencement beginning of each fiscal year of Argosyyear, the an annual summary operating and capital expenditure budget and projected financial statements of the Loan Parties prepared by Holdings for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all year prepared in reasonable detail detail, of Holdings and in any event the Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to include projected Capital Expenditures and quarterly projections the effect that such budget has been reviewed by Holdings’ Board of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this AgreementDirectors;
(viiif) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the reasonable request of the Administrative Agent (which request shall not be made more than once in any 12-month period unless specifically provided otherwise in any of the Security Documents), deliver updated information reflecting all changes since the date of the information most recently received pursuant to Section 5.10(d);
(g) promptly, from time to time, but subject to the limitations set forth in Section 9.16, such other information regarding the operations, business affairs and financial condition of Holdings or any Lenderof the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request; and
(h) promptly upon request by the Administrative Agent, but subject to the limitations set forth in Section 9.16, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Employee Benefits Security Administration with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Non-U.S. Pension Plan, Canadian Plan or Multiemployer Plan as the Administrative Agent shall reasonably request. Documents required to be delivered pursuant to Section 5.04(a), (b) or (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) to the extent any such documents are included in materials otherwise filed with the SEC on which Holdings posts such documents, or provides a link thereto on the Canadian Borrower’s website on the Internet at the website address listed on Schedule 5.04; or (ii) on which such documents are posted on the Canadian Borrower’s behalf on IntraLinks/IntraAgency/SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Canadian Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Canadian Borrower shall immediately notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and all periodic provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Canadian Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 5.04(c) to the Administrative Agent. For the avoidance of doubt, the delivery of information pursuant to this paragraph may be satisfied by delivery of the information required pursuant to Section 5.04(a), (b) or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority (d) with respect to any Gaming Facility;
(x) As soon as possible parent entity of Holdings, provided that, to the extent such information relates to such parent entity, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating such parent entity, on the one hand, and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or Holdings and its Subsidiariesconsolidated Subsidiaries on a standalone basis, and compliance by the Borrowers with the terms of this Agreement and on the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requesthand.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(a) (i) As as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, a copy of the audited consolidated balance sheet of the Company and its consolidated Subsidiaries as of the end of such year and the related audited consolidated statements of income, shareholders equity and cash flow for such year, in each case, prepared in accordance with Generally Accepted Accounting Principles setting forth in comparative form the respective figures as of the end of and for the previous fiscal year, and accompanied by a report thereon of independent certified public accountants of recognized standing selected by the Company and satisfactory to the Lenders (the "Auditor"), which report shall be unqualified; and (ii) as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, a copy of the management prepared consolidating financial statements of the Company and its consolidated Subsidiaries setting forth in comparative form the respective figures as of the end of and for the previous fiscal year and which support the financial statements delivered pursuant to clause (i), in each case of (i) and (ii) prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and with respect to the statements referred to in clause (ii) accompanied by a certificate to that effect executed by the Chief Financial Officer;
(b) as soon as available, but in any event not later than ninety (90) days after the end of each quarterly period of each fiscal year of the Company, a copy of the unaudited interim consolidated and consolidating balance sheet of the Company and its consolidated Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated and consolidating statements of income, shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, in each case prepared under the direction of the Chief Financial Officer in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Chief Financial Officer;
(c) a certificate prepared and signed by the Chief Financial Officer with each delivery required by clauses (a)(ii) and (b), as to whether or not, as of the close of such preceding period and at all times during such preceding period, the Company or each of its Subsidiaries, as the case may be, was in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Chief Financial Officer shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the nature thereof, whether or not the same shall constitute a Default or an Event of Default;
(d) a certificate prepared and signed by the Auditor with each delivery required by clause (a) above stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by any accounting rules or guidelines binding upon the Auditors);
(e) at all times indicated in clause (a) above, a copy of the management letter, if any, prepared by the Auditor;
(f) promptly after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which the Company or any of its Subsidiaries shall file with the Securities and Exchange Commission;
(g) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in any materially adverse action to be taken by such agency;
(h) as soon as available and in no any event later than within forty-five (45) days after the last day of each of the first three fiscal quarters end of each fiscal year quarter, quarterly schedules of Argosyaccounts receivable and accounts payables aging (listing each customer or vendor and the total amount owing to or from each such customer or vendor but not listing the individual invoices which comprise the totals), a copy revenue summary and a backlog and active jobs report, all in form and content satisfactory to the Lenders; provided that such reports may, at the option of the Financial Statements Company, be provided by electronic mail in an Excel file format;
(i) simultaneously with the delivery of Argosy the financial reporting statements referred to in (a)(i), annual financial projections (including a balance sheet and income statement) of the Company and its Subsidiaries prepared on a consolidated basis for such quarter and for the then current fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable which projections shall be in form satisfactory to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xij) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreements, certificates, opinions, statements, documents business affairs and information relating to the operations or condition (financial or otherwise) of Argosy the Company or any of its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Subsidiaries as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Lexent Inc)
Financial Statements, Reports, etc. The Borrowers Such Borrower shall furnish to the Administrative Agent and the Lenders (except as otherwise provided herein):
(a) within one hundred twenty (120) days after the end of each fiscal year, annual consolidated and consolidating financial statements for KMC Holdings, and combined financial statements for the Borrowers, including the balance sheets and statements of operations, stockholders' equity (consolidated only) and cash flows, for such fiscal year, prepared in accordance with GAAP, which consolidated financial statements and other above described financial information shall have been audited by a nationally recognized independent certified public accounting firm satisfactory to the Agent, with sufficient copies for each Lender, the following, each in and accompanied by such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:independent certified public accounting firm's unqualified opinion;
(ib) As soon as available and in no event later than within forty-five (45) days after the last day of each end of the first three fiscal quarters of during each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than within one hundred, hundred twenty (120) days after the close end of the fourth fiscal quarter (i) consolidated and consolidating unaudited balance sheets and statements of operations, and consolidated statements of stockholders' equity and cash flows for KMC Holdings, and combined unaudited balance sheets, statements of operations, stockholders' equity and cash flows of the Borrowers as of the end of each such fiscal quarter, as applicable, and for the then elapsed portion of the fiscal year and (ii) a statement of Argosy, (A) copies revenues and EBITDA for the Borrowers as of the audited Financial Statements end of Argosy each such fiscal quarter, as applicable, and its Subsidiaries prepared on a consolidated basis for such 82 the then elapsed portion of the fiscal year, audited by independent certified public accountants of recognized national standing acceptable to calculated for each city where a System has been constructed in accordance with the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofMilestone Plan;
(iiic) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than within forty-five (45) days after the last day end of each month during each fiscal quarter year (or within one hundred twenty (120) days after the end of Argosyeach December), a detailed statement of operations for the Borrowers on a combined basis for such month and year-to-date period with comparisons to the corresponding projections for such month and year-to-date period set forth in the Milestone Plan; PROVIDED, that such Borrowers shall only be required to deliver the statement described in this SECTION 5.06(c) on a quarterly basis at any time that, and only for so long as, the Borrowers on a combined basis have achieved positive EBITDA;
(d) concurrently with provision of the financial statements referred to in CLAUSES (a), (b) and (c) above, a certificate of KMC Holdings' independent certified public accountant or KMC Holdings' chief financial officer, as applicable, to the effect that the financial statements referred to in CLAUSE (a), (b) and (c) above, present fairly the financial position and results of operations of KMC Holdings, and the Borrowers and as having been prepared in accordance with GAAP consistently applied, in each case subject to normal year end audit adjustments except for the statements referred to in CLAUSE (a) above;
(e) concurrently with the provision of (i) the financial statements referred to in CLAUSE (a) above and (ii) any statements delivered pursuant to CLAUSE (b) above in respect of the periods ending March 31, June 30 or September 30, a Periodic Reporting Certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets KMC Holdings setting forth the calculation calculations contemplated in ARTICLE VII hereof and certifying as to the fact that such Person has examined the provisions of this Agreement and that no Event of Default or any Default, shall have occurred and be continuing or if such an event has occurred, a statement explaining its nature and extent and setting forth the Total Funded Debt steps the Borrowers propose to EBITDA Ratio as take to cure such Event of such dateDefault or Default;
(vi) As soon as possible and in no event not later than five December 1 of each calendar year, consolidating and consolidated projected annual statements of operations, balance sheets and cash flow statements for KMC Holdings for the succeeding fiscal year, such statements to be reasonably acceptable to the Agents, and (5ii) Business Days not later than January 15 of each calendar year, an annual operating budget on a quarterly basis for such calendar year, with each such budget to be in compliance with the Milestone Plan;
(g) to the Collateral Agent, all material agreements or licenses affecting the Governmental Approvals of any Borrower or any System promptly after any execution, or material amendment thereto;
(h) to the Collateral Agent, promptly upon their becoming available, copies of any material periodic or special documents, statements or other information filed by any Borrower with the FCC, PUC or other Governmental Authority in connection with the construction and/or operation of any System or with respect to the transactions contemplated by any of the Loan Documents, and copies of any material notices and other material communications from the FCC, PUC or from any other Governmental Authority;
(i) immediately upon any officer of any Loan Party knows Borrower obtaining knowledge of the occurrence any condition or existence event (i) which either constitutes an Event of (A) any Reportable Event under any Employee Benefit Plan Default or Multiemployer Plana Default, (Bii) which renders any actual representation or threatened litigationwarranty contained herein materially false or misleading, suitsor when made, claims renders any document materially false or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effectmisleading, or (Diii) which would result in any Defaultfinancial results for any fiscal year to materially deviate from the financial results projected for such fiscal year in the Milestone Plan or the financial projections described in CLAUSE (f) above, the statement of the president or chief financial a certificate signed by an authorized officer or treasurer of Argosy setting forth details of such event, condition Borrower specifying in reasonable detail the nature and period of existence thereof and what corrective action such Borrower has taken or Default and the action which Argosy proposes to take with respect thereto;
(vij) If requested within thirty (30) days after the end of each fiscal year of such Borrower, a certificate signed by an authorized officer of such Borrower (x) setting forth all the Administrative Agent or any LenderReal Property, as soon as available and in no event later than five (5) Business Days after they are sentEasements, made available or filedlicenses, copies rights of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases way and other similar public announcements concerning any material developments interests in real property acquired by such Borrower in the business preceding year and (y) confirming that no Default or Event of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallyDefault has occurred and is continuing;
(viik) As soon as availableevidence in the manner set forth in SECTION 5.04(e) of insurance complying with SECTION 5.04;
(l) following the written request of the Agent, and in any event not later than forty-five (45) days after the commencement end of each fiscal year month, reports on accounts receivable and accounts payable of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, Borrower in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable such detail and in any event to include projected Capital Expenditures and quarterly projections of format as may be reasonably requested by the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this AgreementAgent;
(viiim) As soon as possible and in no event later than ten (10) days prior to promptly upon the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariesfiling thereof, copies of any all registration statements and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lenderannual, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority quarterly, monthly or other Governmental Authority regular reports which such Borrower or KMC Holdings files with respect to any Gaming Facility;
(x) As soon as possible the Securities and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesExchange Commission; and
(xin) Such promptly from time to time such other instruments, agreements, certificates, opinions, statements, documents and information relating to regarding the operations or (including, without limitation, construction budgeting and System completion), business affairs and condition (financial or otherwise) of Argosy such Borrower or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents KMC Holdings as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Loan and Security Agreement (KMC Telecom Holdings Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish (a) In the case of the Guarantor, cause to be furnished to each Bank (as Information subject to the Administrative Agentapplicable requirements of Section 9.17 herein, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:if any): -34-
(i) As soon within 120 days after the end of each fiscal year, consolidated (and if requested by the Banks consolidating), (A) a balance sheet, (B) a statement of income and (C) a statement of cash flow, each showing the financial condition of the Guarantor and its Subsidiaries as available of the close of such fiscal year and the results of operations during such fiscal year, all the foregoing financial statements to be prepared in accordance with GAAP, audited by an accounting firm of nationally recognized standing with an unqualified opinion from such firm;
(ii) within five days of filing with the SEC, but in no event later than forty-five (45) 65 days after the last day end of each of the first three fiscal quarters quarter of each fiscal year of Argosythe Guarantor, a copy Guarantor's Form 10-Q for such fiscal quarter together with consolidating (if applicable and if requested by the Banks) and fully consolidated company-prepared financial statements including, without limitation, consolidating (if applicable and if requested by the Banks and fully consolidated balance sheets as of the Financial Statements end of Argosy that fiscal quarter, and its Subsidiaries prepared on a consolidating (if applicable and if requested by the Banks) and fully consolidated basis for such quarter and statements of income for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofquarter;
(iii) Contemporaneously concurrently with each delivery of the quarterly and year-end Financial Statements required by the foregoing clauses statements referred to in (i) and (ii)) above, a compliance certificate the Quarterly Certificate certifying that to the best of the president its, his or chief financial officer her knowledge no Event of Default or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Potential Default has occurred and is continuingoccurred, or, if any such an Event of Default or Potential Default has occurred occurred, specifying the nature and is continuing, extent thereof and accompanied by a statement as of a Financial Officer of the Guarantor specifying any corrective action taken or proposed to the nature thereof and what action the Borrowers propose to take be taken with respect thereto; (B) sets forth, for and setting forth in reasonable detail in the quarter or year covered by such Financial Statements or form of Exhibit F the calculation of financial measures and ratios required to demonstrate compliance with the covenants, conditions and agreements contained herein, all determined as of the last day of such quarter or year (as the case may be), the calculation end of the financial ratios and tests provided in SECTION 5.03period covered by said statements;
(iv) As soon as available and within 45 days of their being filed, in no event later addition to those delivered by Guarantor to Bank pursuant to (ii) above, copies of all reports (other than forty-five preliminary proxy statements) filed by the Guarantor with the SEC (45) days after the last day of each fiscal quarter of Argosy, a certificate or any Governmental Authority succeeding to any or all of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation functions of the Total Funded Debt to EBITDA Ratio as SEC) under the requirements of such date;the 1934 Act, or any successor statute; and
(v) As soon as possible promptly, from time to time, such other information regarding the operations, business affairs and in no event later than five (5) Business Days after any officer of any Loan Party knows financial condition of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Guarantor as the Administrative Agent may reasonably request.
(b) In the case of the Borrower, furnish to each Bank (as Information subject to the applicable requirements of Section 9.17 herein, if any):
(i) Borrower as of the close of such fiscal year and the results of operations during such fiscal year;
(ii) concurrently with each delivery of the statement above, a statement by a Financial Officer certifying that to the best of its, his or her knowledge no Event of Default or Potential Default has occurred, or, if such an Event of Default or Potential Default has occurred, specifying the nature and extent thereof and accompanied by a statement of a Financial Officer of the Borrower specifying any Lender may corrective action taken or proposed to be taken with respect thereto; and (iii) promptly, from time to time time, such other information regarding the operations, business affairs and financial condition of the Borrower as the Administrative Agent may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Lessee and JFC will ----------------------------------- deliver to the Administrative Agent, Agent with sufficient copies for each LenderFunding Party, the following, each in such form and such detail as substance satisfactory to the Administrative Agent or and the Required Lenders shall reasonably requestLenders:
(i) As as soon as available and and, in no event later than forty-five (45) any case, within 90 days after the last day close of each fiscal year, two copies of the respective consolidated statements of financial condition of the Lessee and its Subsidiaries and JFC and its Subsidiaries setting forth the financial condition of such entities as of the end of such fiscal year, together with consolidated statements of income, cash flows, changes in partnership capital and changes in liabilities of the Lessee and JFC, respectively, for such fiscal year, in each case setting forth, in comparative form, the figures for the preceding fiscal year, all in reasonable detail, such financial statements to be accompanied by an opinion with respect thereto of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another Independent Certified Public Accountant, which opinion shall state that (x) the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (y) such financial statements present fairly the financial condition of the Lessee and its Subsidiaries and JFC and its Subsidiaries, respectively, at such date and the results of operations thereof for such period and have been prepared in accordance with generally accepted accounting principles consistently applied, except for noted changes in application in which such accountants concur;
(ii) as soon as practicable and, in any case, within 45 days after the end of each of the first three fiscal quarters of first, second and third quarterly accounting periods in each fiscal year year, two copies of Argosy, a copy (x) the respective unaudited consolidated statements of financial condition of the Financial Statements of Argosy Lessee and its Subsidiaries prepared on a and JFC and its Subsidiaries as of the end of such accounting period, and (y) the respective unaudited consolidated basis statements of income of the Lessee and its Subsidiaries and JFC and its Subsidiaries for such quarter the quarterly accounting period and for the fiscal year to date, setting forth in each case in comparative form the figures for the corresponding periods a year earlier, prepared and certified by the president or chief principal financial officer of Argosy to present fairly in all material respects the financial conditionLessee and JFC, results of operations respectively, as complete and other information reflected therein and to have correct, as having been prepared in accordance with GAAP (subject consistently applied and as presenting fairly such financial condition and results of operations, subject, in each case, to normal changes resulting from year-end audit adjustments);
(iiiii) As soon as available and in no event later than one hundredpromptly upon receipt thereof, twenty (120) days after the close two copies of each fiscal year of Argosyreport other than those referred to in paragraph (i) hereof (including, (Awithout limitation, the auditors' comment letter to management) copies of submitted to JFC, the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited Lessee or any Subsidiary by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuingannual, interim or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofspecial audit;
(iiiiv) Contemporaneously promptly upon distribution thereof, copies of all such financial or other statements (including proxy statements) and reports as JFC, the Lessee or any Subsidiary shall send to any class of its partners or shareholders, as the case may be, its bank lenders or holders of any issue of its debt securities;
(v) promptly after filing thereof, copies of all reports, proxy statements and registration statements that JFC, the Lessee or any Subsidiary shall file with any securities exchange or the SEC, or any governmental or public authority or agency substituted therefor, or any Business Association, including, without limitation, all Focus Reports (provided that such Focus Reports may be provided on a quarterly basis) and year-end Financial Statements required by all amendments to any of the foregoing clauses (i) filed by or with respect to the Lessee or any Subsidiary, and (ii)promptly after filing of any Form BD, a compliance certificate of the president Form ADV or chief CRD report or any amendment thereto that reflects any material disciplinary action, liability or change in financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuingposition, or, if any such Default has occurred and is continuing, a statement as to an Officer's Certificate specifying the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter Lessee is taking or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedpromptly upon receipt thereof, copies of (A) all registration statements and reports filed by Argosy notices received from United States, Canadian or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy other Permitted Nation or any of its Subsidiaries state, provincial or local governmental or public authorities or agencies or any Business Association relating to its security holdersany order, and (C) all press releases and ruling, statute, regulation or other similar public announcements concerning any material developments in law or directive that might materially adversely affect the financial condition or business of Argosy the Lessee or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallySubsidiary;
(vii) As soon as availableimmediately after the occurrence or institution thereof, an Officer's Certificate specifying any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including, to the extent so applicable: (w) any breach or non-performance of, or any default under, a Contractual Obligation of the Lessee, JFC or any of their Subsidiaries; (x) any dispute, litigation, investigation, proceeding or suspension between the Lessee, JFC or any of their Subsidiaries and any Governmental Authority; (y) the commencement of, or any material development in, any litigation or proceeding affecting the Lessee, JFC or any of their Subsidiaries, including pursuant to any applicable Environmental Laws; or (z) any other Environmental Claims, which certificate shall describe what action the Lessee is taking or proposes to take with respect thereto;
(viii) promptly, and in any event not later than forty-five (45) within 45 days after the commencement end of each of the first, second and third quarterly accounting periods in each fiscal year, and within 90 days after the close of each fiscal year year, an Officer's Certificate setting forth a Net Capital computation for the Lessee (or, if the Lessee is operating pursuant to paragraph (a)(1)(ii) of ArgosyRule 15c3-1, an Alternative Net Capital computation) as at the end of each quarterly fiscal period, and certifying such computation as true and correct; provided, -------- however, that so long as (x) the Lessee shall be required to submit ------- a report for such quarterly fiscal period on Part I, II or IIA of Form X-17A-5 (and accompanying information if any) to the SEC pursuant to Rule 17a-5 of the General Rules and Regulations of the SEC under the Exchange Act and (y) such report shall provide the computation required by this paragraph (viii), the budget Lessee may submit such report (and projected financial statements of the Loan Parties for such fiscal yearaccompanying information if any), including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants certified as set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h)above;
(ix) As as soon as possible available, a copy of the annual audited report filed by the Lessee pursuant to paragraph (d)(2) of Rule 17a-5 of the General Rules and Regulations of the SEC under the Exchange Act, together with the supporting schedules filed with said report pursuant to paragraph (d)(3) of such Rule, provided, -------- however, that should said Rule 17a-5 lapse or be repealed, in no event later than five (5) Business Days after whole ------- or in part, the receipt thereof by Argosy Lessee shall deliver such other information or reports as it shall be required to file in its status as a broker or dealer of securities with the SEC or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facilitysuccessor agency thereto;
(x) As soon as possible immediately upon any partner or officer of the Lessee obtaining knowledge of any new designation of an Examining Authority, an Officer's Certificate specifying such new Examining Authority;
(xi) immediately upon any partner or officer of the Lessee obtaining knowledge of any condition or event which constitutes or which, after notice or lapse of time or both, would constitute an Event of Default or Potential Event of Default, an Officer's Certificate, specifying the nature and period of existence thereof and what action the Lessee has taken or is taking or proposes to take with respect thereto;
(xii) immediately upon becoming aware of the occurrence of any of the following events affecting the Lessee, JFC or any ERISA Affiliate (but in no event later more than five (5) Business Days 10 days after such event), and deliver to the receipt thereof by Argosy or any of its Subsidiaries, Agent and each Funding Party a copy of any noticenotice with respect to such event that is filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Lessee, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, JFC or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating ERISA Affiliate with respect to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.such event:
Appears in 1 contract
Sources: Master Agreement (Jones Financial Companies Lp LLP)
Financial Statements, Reports, etc. The Borrowers shall Parent will furnish or cause to be furnished to the Administrative Agent, Agent (with sufficient copies a copy for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:Bank):
(ia) As as soon as available and in no event but not later than forty-five (45) 120 days after the last day close of each of its fiscal years, consolidated statements of financial position of the first three fiscal quarters Parent and its Consolidated Subsidiaries at the close of each such fiscal year and the related consolidated statements of Argosyincome, a copy of the Financial Statements changes in shareholders' equity and of Argosy and its Subsidiaries prepared on a consolidated basis cash flows for such quarter and year, setting forth in comparative form the figures for the fiscal year previous year, such financial statements to date, certified by be reported on (such report to include the president or chief statement that such financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to statements have been prepared in accordance with GAAP consistently applied during the period involved and present fairly the consolidated financial position and results of operations of the Parent and its Consolidated Subsidiaries) without a qualification arising out of the scope of the audit, by KPMG Peat Marwick (or another firm of independent certified public accountants reasonably acceptable to the Required Banks), together with the statement of such accountants that, in connection with making their examination of such financial statements, they have reviewed the provisions of this Agreement and that nothing has come to their attention to lead them to believe that any Default or Event of Default exists and in particular, but without limitation, that they have no knowledge of any Default or Event of Default under Article VIII or, if such is not the case, specifying such Default or Event of Default and the nature thereof (it being understood that the examination of such accountants cannot be relied upon to give them knowledge of any Default or Event of Default except as it relates to accounting or auditing matters);
(b) as soon as available but not later than 60 days after the close of each of the first three quarters of each fiscal year of the Parent, a consolidated statement of financial position of the Parent and its Consolidated Subsidiaries at the close of such quarter and the related consolidated statements of income and of year to date cash flows for such quarter and for the period from the beginning of the then current fiscal year to the end of such quarter, such financial statements to be certified by the chief executive officer, the chief financial officer or a senior financial officer of the Parent as being complete and correct, prepared in accordance with GAAP consistently applied during the period involved and fairly presenting the consolidated financial position and results of operations of the Parent and its Consolidated Subsidiaries for the period then ended (subject to normal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundred, twenty together with each delivery of financial statements pursuant to paragraph (120a) days after the close or (b) of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of ArgosySection 7.3, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Defaultexecutive officer, the statement of the president or chief financial officer or treasurer a senior financial officer of Argosy setting forth details the Parent stating whether there has occurred during the fiscal period with respect to which such financial statements are being delivered a Default or Event of such eventDefault, condition and, if any Default or Event of Default existed or exists, specifying the nature and period of the existence thereof and what action which Argosy any Obligor has taken or proposes to take with respect theretothereto (said certificate to contain calculations showing in reasonable detail whether the Parent is in compliance with Sections 8.10 and 8.11);
(vid) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedpromptly upon their filing, copies of (A) all registration statements and all reports on Forms 10-K, 10-Q or 8-K filed by Argosy or any of its Subsidiaries Obligor with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy comparable documents filed with any Canadian federal or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallyprovincial securities regulatory authority;
(viie) As soon as availablepromptly, and notice of any change in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements rating of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow Senior Unsecured Debt of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;Parent by S&P or Mood▇'▇; ▇▇d
(viiif) As soon with reasonable promptness, such other information regarding any Obligor as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental LawAgent, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instrumentsBank through the Agent, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each Agent (in such form and such reasonable detail as satisfactory to the Administrative Agent or the Required Lenders shall reasonably request:Agent):
(ia) As as soon as available and but in any event no event later than forty-five one hundred twenty (45120) days (or, in the case of the fiscal year ending December 31, 2021, one hundred fifty (150) days) after the last day of each of the first three fiscal quarters close of each fiscal year of Argosythe Borrower (commencing with the fiscal year ending December 31, a copy 2021), the Consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis as of the close of such fiscal year and the related Consolidated statements of income, members’ equity and cash flows for such quarter fiscal year, such Consolidated financial statements to be audited by, and for accompanied by a report of, a firm of independent certified public accountants reasonably acceptable to the fiscal year Administrative Agent, to date, certified by the president or chief effect that such Consolidated financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to statements have been prepared in conformity with GAAP consistently applied, which audit and accompanying report shall not contain any qualification or exception, together with a certificate of such accountants stating that, in connection with their audit of the Borrower and its Subsidiaries they have reviewed the provisions of this Agreement and that nothing has come to their attention to lead them to believe that any Event of Default hereunder exists or, if such is not the case, specifying such Event of Default and the nature thereof (it being understood that the examination of such accountants cannot be relied upon to give them knowledge of any Event of Default except as it relates to accounting or auditing matters);
(b) as soon as available but in any event no later than sixty (60) days after the end of each fiscal quarter of the Borrower (including the fourth fiscal quarter of each year), the Consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of such fiscal quarter and the related Consolidated statements of income, members’ equity and cash flows for such fiscal quarter, all prepared internally in reasonable detail satisfactory to the Administrative Agent in accordance with GAAP consistently applied (subject to normal the absence of footnotes and year-end audit adjustments);
(iic) As soon as available and concurrently with the financial statements specified in no event later than one hundredclause (b) of this Section, twenty a certificate duly executed by a Responsible Officer substantially in the form of Exhibit C hereto (120) days after the close of each fiscal year of Argosya “Compliance Certificate”), (Ai) copies certifying that no Default or Event of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing as of the date of delivery of such certificate, or if a Default or Event of Default is continuing, a statement as to stating the nature thereofthereof in reasonable detail and any action taken or proposed to be taken with respect thereto and (ii) submitting calculations showing compliance with the financial covenants set forth in Section 6.25 for the fiscal period covered by such financial statements;
(iiid) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and available, but in any event no event later than forty-five thirty (4530) days after the last day of each fiscal quarter of Argosy, a certificate year of the chief Borrower, financial officer or treasurer of Argosy (projections for its next succeeding fiscal year, which projections shall be satisfactory in form and detail to the Administrative Agent and shall be prepared by a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such dateResponsible Officer in good faith, based upon reasonable assumptions;
(ve) As as soon as possible and available but in any event no event later than five sixty (560) Business Days days after any officer the end of any Loan Party knows each of the occurrence or existence of first three (A3) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement fiscal quarters of the president or chief Borrower, a narrative discussion and analysis (in a management discussion analysis format) of the financial officer or treasurer condition (including, but not limited to, pro forma projections) and results of Argosy setting forth details operations of the Borrower and its Subsidiaries for such event, condition or Default and the action which Argosy proposes period (in form reasonably acceptable to take with respect thereto;
(vi) If requested by the Administrative Agent or in the manner set forth in the relevant filing with the SEC to the extent contained therein) and for the period from the beginning of the then current fiscal year to the end of such period, as compared to the comparable periods of the previous year;
(f) concurrently with the financial statements specified in clause (a) of this section, a narrative discussion and analysis (in a management discussion analysis format) of the financial condition (including, but not limited to, pro forma projections) and results of operations of the Borrower and its Subsidiaries for such period (in form reasonably acceptable to the Administrative Agent or in the manner set forth in the relevant filing with the SEC to the extent contained therein) and for the period from the beginning of the then current fiscal year to the end of such period, as compared to the comparable periods of the previous year;
(g) promptly after the same are available, copies of all annual, regular, periodic and special reports and registration statements which the Borrower (or any Lenderparent thereof, including the Parent) may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(h) as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and but in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any end of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request each calendar month of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its SubsidiariesBorrower, a copy certificate duly executed by a Responsible Officer submitting calculations showing compliance with the financial covenant set forth in Section 6.25(a) as of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation the last day of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagessuch calendar month; and
(xii) Such with reasonable promptness, such other instrumentsinformation regarding a Restricted Group Member as the Administrative Agent may reasonably request. Documents required to be delivered pursuant to Section 6.3(a) or (b) may be delivered electronically and if so delivered, agreementsshall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, certificatesor provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 3 (as updated from time to time); (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, opinionsif any, statementsto which each Lender and the Administrative Agent have access (whether a commercial, documents and information relating to the operations third-party website or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance whether sponsored by the Borrowers with Administrative Agent); or (iii) if applicable, on which such documents are filed for public availability on the terms SEC’s Electronic Data Gathering and Retrieval System (or any successor thereto), including on any Form 10-K, Form 10-Q or Form 8-K filing; provided that: (x) the Borrower shall deliver paper copies of this Agreement and the other Credit Documents as such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Notwithstanding anything to the contrary in this Section 6.3 or any other Loan Document, none of the Borrower or any of its Subsidiaries shall be required to disclose any document, information or other matter (1) that constitutes non-financial trade secrets, (2) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by any applicable law or any binding contractual agreement as to confidentiality with a third party or (3) is subject to attorney-client privilege or constitutes attorney work product. The Borrower hereby acknowledges that (a) the Administrative Agent and the Arrangers may, but shall not be obligated to, make available to the Lenders materials and information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may from time have personnel who do not wish to time reasonably requestreceive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Appears in 1 contract
Sources: Delayed Draw Term Loan and Guaranty Agreement (ArcLight Clean Transition Corp. II)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(a) within 120 days after the end of each fiscal year or, following a Qualifying IPO, at such earlier time as the IPO Entity may be required to file its annual report for such fiscal year under the Exchange Act (provided that the certificate required to be delivered under clause (c) below for such fiscal year may be delivered within 10 Business Days of such time), (i) As soon prior to the consummation of a Qualifying IPO, the annual audited combined and consolidated statement of financial condition and the related combined and consolidated statements of operations, changes in partners’ capital and cash flows as available of the end of and for such fiscal year of Group Holdings SBS and (ii) following the consummation of a Qualifying IPO, the annual audited consolidated statement of financial condition and the related consolidated statements of operations, changes in stockholders’ equity and cash flows as of the end of and for such fiscal year of the IPO Entity, in each case of clauses (i) and (ii) above, reported upon by Deloitte & Touche LLP or another independent registered public accounting firm of recognized national standing without any “scope of audit” qualification or statement from such accounting firm that such accounting firm believes substantial doubt exists about the ability of Group Holdings SBS or the IPO Entity, as applicable to continue as a going concern, and (ii) the unaudited and unconsolidated statements of results of operations and financial condition as of the end of such fiscal year of the Borrower, which will not be prepared in accordance with GAAP but will fairly present the Borrower’s results of operations and financial condition in a manner consistent with the historical financial statements of the Borrower;:
(b) as promptly as available, but in no event later than forty-five (45) 90 days after the last day end of each of the first three fiscal quarters of each fiscal year or, following a Qualifying IPO, at such earlier time as the IPO Entity may be required to file its quarterly report for such fiscal quarter under the Exchange Act (provided that the certificate required to be delivered under clause (c) below for such fiscal quarter may be delivered within 10 Business Days of Argosysuch time), (i) prior to a copy Qualifying IPO, the quarterly unaudited condensed, combined and consolidated statement of financial condition and condensed, combined and consolidated statements of operations, changes in partners’ capital and cash flows of Group Holdings SBS as of the end of and for such fiscal quarter and the then-elapsed portion of the fiscal year, ; provided that the quarterly unaudited consolidated statement of financial condition, changes in partners’ capital and cash flows for the fiscal quarter ending September 30, 2021 shall not be required (but the then-elapsed portion of the fiscal year ending September 30, 2021 shall still be required) and (ii) following a Qualifying IPO, the quarterly unaudited consolidated statement of financial condition and consolidated statements of operations, changes in stockholders’ equity and cash flows of the IPO Entity as of the end of and for the periods required by any securities exchange or the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities of the IPO Entity, in each case certified by a Financial Statements Officer as presenting fairly, in all material respects, the financial position and results of Argosy and its Subsidiaries prepared operations of Group Holdings SBS or the IPO Entity, as applicable, on a consolidated basis for such quarter and in accordance with GAAP consistently applied, except for the fiscal year absence of footnotes or as otherwise described therein and subject to date, certified by year-end audit adjustments and (ii) the president or chief financial officer quarterly unaudited and unconsolidated statements of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been financial condition as of the end of such fiscal quarter of the Borrower, which will not be prepared in accordance with GAAP but will fairly present the Borrower’s results of operations and financial condition in a manner consistent with the historical financial statements of the Borrower;:
(c) concurrently with any delivery of financial statements under clause (a) or (b) above (but subject to normal year-end audit adjustmentsextension as permitted under clauses (a) and (b) above);
, a certificate of a Financial Officer (i) certifying that, to the best of his or her knowledge, no Default has occurred or, if such a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) As soon as available setting forth the AUM and computations in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants reasonable detail satisfactory to the Administrative Agent stating that demonstrating compliance with the financial covenant contained in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge Section 7.10(b), including reasonably detailed calculations of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as Economic Net Income (to the nature thereofextent not reflected in a footnote to such financial statementsFee-Related Earnings (consistent with the level of detail included in any periodic reports or registration statements filed by the IPO Entity with any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities), Total Indebtedness, Combined EBITDA and Leverage Ratio;
(iiid) Contemporaneously promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Loan Parties or the Covered Subsidiaries, or compliance with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer terms of any Loan Party knows of Document, as the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is Administrative Agent may reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;request; and
(vie) If promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, as soon as available including, without limitation, the PATRIOT Act and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports)Beneficial Ownership Regulation. Notwithstanding the foregoing, (Bi) all reports, proxy statements if the combined and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected consolidated financial statements of Group Holdings SBS or the IPO Entity, as applicable, delivered under clause (a) or (b) above do not include the assets and results of operations of each of the Guarantors (including any Person that becomes a Guarantor pursuant to Section 2.14 for purposes of complying with Section 7.07), the Loan Parties for such fiscal yearcovenant and agree to furnish to the Administrative Agent equivalent audited or unaudited, includingas the case may be, in each case, projected balance sheets, consolidated financial statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth Guarantors not so included in SECTION 5.03 the financial statements delivered under clause (a) or (b) above and (ii) at any time the combined and consolidated financial statements of this Agreement;
Group Holdings SBS or the IPO Entity, as applicable, delivered under clause (viiia) As soon as possible or (b) above include the assets and in no event later than ten (10) days prior results of operations of any Excluded Subsidiary, the Loan Parties covenant and agree to furnish to the acquisition Administrative Agent adjustments to the financial statements delivered under clause (a) or (b) above to eliminate the assets and results of operations of all Excluded Subsidiaries. The financial statements or adjustments required by any Loan Party the preceding sentence shall be furnished to the Administrative Agent at the times the corresponding financial statements are required to be delivered under clause (a) or (b) above, as applicable. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of any leasehold the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or ownership interest in real property with a fair market value another similar electronic system (the “Platform”); and (b) certain of $10,000,000 or morethe Lenders (each, a written supplement “Public Lender”) may have personnel who do not wish to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all receive material notices and other material adverse communications from any Governmental Authority non-public information with respect to any Loan Party the Borrower or any Gaming Facility and promptly upon Subsidiary or Affiliate thereof, or the request respective securities of any of the Administrative Agent or any Lenderforegoing, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or who may be engaged in investment and other Governmental Authority market-related activities with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.such Persons’
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall In the case of the Borrower, furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As as soon as available and in no any event later than forty-five (45) within 110 days after the last day end of each fiscal year, consolidated balance sheets and the related statements of income and cash flows of the Borrower and its Subsidiaries (the Borrower and its Subsidiaries being collectively referred to as the "Companies") as of the close of such fiscal year (which requirement shall be deemed satisfied by the delivery of the Borrower's Annual Report on Form 10-K (or any successor form) for such year), all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Companies on a consolidated basis in accordance with GAAP consistently applied;
(b) within 65 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ended September 30, 2004), consolidated balance sheets and related statements of Argosy, a copy income and cash flows of the Companies as of the close of such fiscal quarter and the then elapsed portion of the fiscal year (which requirement shall be deemed satisfied by the delivery of the Borrower's Quarterly Report on Form 10-Q (or any successor form) for such quarter), each certified by a Financial Statements Officer as fairly presenting the financial condition and results of Argosy and its Subsidiaries prepared operations of the Companies on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundredconcurrently with any delivery of financial statements under paragraph (a) or (b) of this Section, twenty (120) days after the close a certificate of each fiscal year of Argosy, (A) copies a Financial Officer of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable Borrower (i) certifying as to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, whether a Default has occurred and, if a Default has occurred, specifying the details thereof and is continuing, a statement as any action taken or proposed to the nature thereof;
(iii) Contemporaneously be taken with the quarterly and year-end Financial Statements required by the foregoing clauses (i) respect thereto and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy ) setting forth reasonably detailed calculations (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take including with respect thereto; (Bto any pro forma effect given to a Material Transaction) sets forth, for the quarter or year covered by such Financial Statements or demonstrating compliance with Section 6.07 as of the last day of the most recent fiscal quarter covered by such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03statements;
(ivd) As soon as available promptly upon the mailing or filing thereof, copies of all financial statements, reports and in no event later proxy statements mailed to the Borrower's public shareholders, and copies of all registration statements (other than fortythose on Form S-8) and Form 8-five K's (45) days after to the last day extent that such Form 8-K's disclose actual or potential adverse developments with respect to the Borrower or any of each fiscal quarter of Argosyits Subsidiaries that constitute, or could reasonably be anticipated to constitute, a certificate of Material Adverse Effect) filed with the chief financial officer Securities and Exchange Commission (or treasurer of Argosy (a "PRICING CERTIFICATE"any successor thereto) which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such dateor any national securities exchange;
(ve) As soon as possible and in no event later than five promptly after (5i) Business Days after any officer the occurrence thereof, notice of any Loan Party knows ERISA Termination Event or "prohibited transaction", as such term is defined in Section 4975 of the occurrence Code, with respect to any Plan that results, or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plancould reasonably be anticipated to result, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, which notice shall specify the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default nature thereof and the action which Argosy proposes to take with respect Borrower's proposed response thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (Cii) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariesactual knowledge thereof, copies of any and all material notices and other material adverse communications from notice of PBGC's intention to terminate or to have a trustee appointed to administer any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesPlan; and
(xif) Such promptly, from time to time, such other instrumentsinformation, agreementsregarding its operations, certificatesbusiness affairs and financial condition, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Agreement, as the Administrative Agent or any Lender may from time to time reasonably request.
(i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by Section 5.02(c) to the Administrative Agent. Except for such compliance certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Citizens Communications Co)
Financial Statements, Reports, etc. The Borrowers shall furnish Partnership will deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestholder of a Note:
(ia) As as soon as available and practicable and, in no event later than forty-five (45) any case, within 90 days after the last day close of each fiscal year, two copies (together with a further copy which the Partnership shall deliver directly to the National Association of Insurance Commissioners, Securities Valuation Office, 195 Broadway, N.Y., N.Y. 10007) of the consolidated statement of financial condition of the Partnership and its Consolidated Subsidiaries setting forth its financial condition as of the end of such fiscal year, together with consolidated statements of income, cash flows, changes in partnership capital and changes in liabilities subordinated to claims of general creditors of the Partnership for such fiscal year, in each case setting forth, in comparative form, the figures for the preceding fiscal year, all in reasonable detail, such financial statements to be accompanied by an opinion with respect thereto of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another Independent Certified Public Accountant, which opinion shall state that (x) the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (y) such financial statements present fairly the financial condition of the Partnership and Consolidated Subsidiaries at such date and the results of operations thereof for such period and have been prepared in accordance with generally accepted accounting principles consistently applied, except for noted changes in application in which such accountants concur;
(b) as soon as practicable and, in any case, within 45 days after the end of each of the first three fiscal quarters of first, second and third quarterly accounting periods in each fiscal year year, two copies of Argosy, a copy (i) an unaudited consolidated statement of financial condition of the Financial Statements of Argosy Partnership and its Consolidated Subsidiaries prepared on a as of the end of such accounting period, and (ii) unaudited consolidated basis statements of income of the Partnership and its Consolidated Subsidiaries for such quarter the quarterly accounting period and for the fiscal year to date, setting forth in each case in comparative form the figures for the corresponding periods a year earlier, prepared and certified by the president or chief principal financial officer of Argosy to present fairly in all material respects the financial conditionPartnership as complete and correct, results of operations and other information reflected therein and to have as having been prepared in accordance with GAAP (subject generally accepted accounting principles consistently applied and as presenting fairly such financial condition and results of operations, subject, in each case, to normal changes resulting from year-end audit adjustments);
(iic) As soon as available and in no event later than one hundredpromptly upon receipt thereof, twenty (120) days after the close two copies of each fiscal year of Argosyreport other than those referred to in paragraph (a) hereof (including, (Awithout limitation, the auditors' comment letter to management) copies of submitted to JFC, the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited Partnership or any Subsidiary by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with any annual, interim or special audit;
(d) promptly upon distribution thereof, copies of all such Financial Statements financial or other statements (including proxy statements) and (C) certificates reports as JFC, the Partnership or any Subsidiary shall send to any class of such accountants to its partners or shareholders, as the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge case may be, its bank lenders or holders of any Default which has occurred issue of its debt securities;
(e) promptly after filing thereof, copies of all reports, proxy statements and is continuingregistration statements that JFC, the Partnership or any Subsidiary shall file with any securities exchange or the SEC, or ifany governmental or public authority or agency substituted therefor;
(f) promptly upon receipt thereof, copies of all notices received from United States, Canadian, state, provincial or local governmental or public authorities or agencies relating to any order, ruling, statute, regulation or other law or directive that might materially adversely affect the financial condition or business of the Partnership or any Subsidiary;
(g) promptly after the institution of any suit, action or proceeding against (or derivatively on behalf of) the Partnership or any Subsidiary which involves a claim which (i) on its face seeks to recover actual damages in excess of $500,000 or (ii) presents a reasonable possibility of success by the opinion claimant(s) of such accountantscollecting an amount (including damages, fees and expenses) in excess of $500,000, a Default has occurred and is continuing, a statement as to the nature reasonably detailed written report thereof;
(iiih) Contemporaneously with promptly, and in any event within 30 days, after the quarterly end of each month, an Officer's Certificate setting forth a Net Capital computation for the Partnership (or, if the Partnership is operating pursuant to paragraph (a)(1)(ii) of Rule 15c3-1, an Alternative Net Capital computation) as at the end of such month, and year-end Financial Statements required by the foregoing clauses certifying such computation as true and correct; provided, however, that so long as (i) the Partnership shall be required to submit a monthly report on Part I, II or IIA of Form X-17A-5 (and accompanying information if any) to the SEC pursuant to Rule 17a-5 of the General Rules and Regulations of the SEC under the Securities Exchange Act and (ii) such report shall provide the computation required by this paragraph (h), the Partnership may submit such report (and accompanying information if any), certified as set forth above;
(i) as soon as available, a compliance certificate copy of the president annual audited report filed by the Partnership pursuant to paragraph (d)(2) of Rule 17a-5 of the General Rules and Regulations of the SEC under the Securities Exchange Act, together with the supporting schedules filed with said report pursuant to paragraph (d)(3) of said Rule; provided, however, that should said Rule 17a-5 lapse or chief financial be repealed, in whole or in part, the Partnership shall deliver such other information or reports as it shall be required to file in its status as a broker or dealer of securities with the SEC or any successor agency thereto;
(j) immediately upon any partner or officer of the Partnership obtaining knowledge of any new designation of an Examining Authority, an Officer's Certificate specifying such new Examining Authority;
(k) immediately upon any partner or treasurer officer of Argosy (a "COMPLIANCE CERTIFICATE") the Partnership obtaining knowledge of any condition or event which (A) states that no Default has occurred and is continuingconstitutes or which, orafter notice or lapse of time or both, if any such Default has occurred and is continuingwould constitute an Event of Acceleration or an Event of Default, a statement as to an Officer's Certificate, specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter Partnership has taken or year covered by such Financial Statements is taking or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vil) If requested immediately upon becoming aware of the occurrence of any (i) "reportable event," as such term is defined in Section 4043 of ERISA, or (ii) "prohibited transaction," as such term is defined in Section 4975 of the Code and Section 406 of ERISA, in connection with any Plan or any trust created thereunder, a written notice specifying the nature thereof, what action the Partnership is taking or proposes to take with respect thereto, and, when known, any action taken by the Administrative Agent Internal Revenue Service or any Lender, as soon as available and in no event later than five the Labor Department with respect thereto;
(5m) Business Days after they are sent, made available or filedat the time of release thereof, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements of the Partnership or any Subsidiary concerning any event or condition material developments in to the business business, prospects, earnings, properties or condition, financial or other, of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallythem;
(viin) As soon as available, and in any event not later than forty-five (45) days promptly after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariesexecution thereof, a copy of any noticeeach amendment to the Partnership Agreement, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagesthan an amendment made solely to reflect additional capital contributions to the Partnership by a Partner; and
(xio) Such promptly upon request therefor, such other instrumentsdata, agreements, certificates, opinions, statements, documents filings and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender holder may from time to time reasonably request.
Appears in 1 contract
Sources: Note Purchase Agreement (Jones Financial Companies L P)
Financial Statements, Reports, etc. The Borrowers shall furnish (a) Deliver to the Administrative AgentLender (or cause to be delivered to Lender), with sufficient copies for each in form and detail reasonably satisfactory to Lender, unless delivery and/or the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requesttiming of delivery is waived by Lender:
(i) As soon as available and in but no event later than forty-five sixty (4560) days after the last day of each close of the first three first, second and third quarterly periods of its fiscal quarters of each fiscal year of Argosyyear, a copy of the Financial Statements of Argosy quarterly (and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)to-date) financial statements of and prepared by Borrower to include a balance sheet and an income and expense statement;
(ii) As soon as available and in but no event later than one hundred, hundred twenty (120) days after the close of each applicable fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited financial statements of Borrower including a statement of equity, a balance sheet as of the close of such year, an income and expense statement, reconciliation of capital accounts and a statement of cash flows, all prepared in accordance with GAAP and certified by an independent certified public accountants accountant selected by the Person whose financial statements are being prepared and satisfactory to Lender. Such certificate shall not be qualified or limited because of recognized national standing acceptable to the Administrative Agent, (B) copies restricted or limited examination by such accountant of any material portion of the unqualified opinions (or qualified opinions reasonably acceptable to records of the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofapplicable Person;
(iii) Contemporaneously On the tenth day of each month, with respect to the quarterly preceding month, a report with respect to the Project substantially in the form of EXHIBIT P hereto.
(iv) Within thirty (30) days after Completion of the Project, "as built" maps indicating the locations related to each Easement, Permit, Collation Agreement, Interconnection Agreement, and year-end Financial Statements required by Pole and Conduit Use Agreement.
(v) Such other statement or statements, lists of property and accounts, budgets, forecasts or reports relating to the foregoing clauses Project, as Lender may reasonably request from time to time and that can be provided without unreasonable cost to or effort on the part of Borrower.
(b) Each time the financial statements are delivered under subsections (i) and or (ii) of SECTION 5.2(A), a compliance certificate signed by the natural person who is a senior financial officer of Borrower shall be delivered along with such financial statements, certifying that such officer has made or caused to be made a review of the president transactions and financial condition of the Borrower during the relevant fiscal period and that such review has not, to the best of such officer's knowledge, disclosed the existence of any event or chief financial officer condition which constitutes an Event of Default or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuinghereunder or under any Credit Document applicable to Borrower, or, or if any such Default has occurred and is continuingevent or condition existed or exists, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter corrective actions that Borrower has taken or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments also certifying that the Borrower is in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms applicable provisions of this Agreement or any other Credit Document applicable to Borrower or, if such is not the case, stating the nature of such non-compliance and the other Credit Documents as the Administrative Agent corrective actions which Borrower has taken or any Lender may from time proposes to time reasonably requesttake with respect thereto.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall Borrower will furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestBank:
(ia) As soon as available and in no event later than forty-five the date on which such statements are required to be filed with the SEC, its consolidated balance sheets and the related statements of income and cash flows, showing its consolidated financial condition as of the close of such fiscal year and the consolidated results of its operations during such year, all audited by PricewaterhouseCoopers LLP or other independent auditors of recognized national standing and accompanied by an opinion of such auditors to the effect that such consolidated financial statements fairly present its financial condition and results of operations on a consolidated basis in accordance with GAAP consistently applied, except as noted therein;
(45b) days after no later than the last day date on which such statements are required to be filed with the SEC, its consolidated balance sheets and related statements of income and cash flows for each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy showing its consolidated financial condition as of the Financial Statements close of Argosy and its Subsidiaries prepared on a consolidated basis for such fiscal quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, consolidated results of its operations during such fiscal quarter and other information reflected therein and to have been prepared in accordance the then elapsed portion of such fiscal year, together with GAAP (subject to normal yearthe certification by one of its Financial Officers as required under Section 302 of the S▇▇▇▇▇▇▇-end audit adjustments)▇▇▇▇▇ Act;
(iic) As soon as available and in no event later than one hundred, twenty concurrently with any delivery of financial statements under paragraph (120a) days after the close of each fiscal year of Argosy, or (Ab) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosyabove, a certificate of the chief financial officer or treasurer a Financial Officer certifying that no Event of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, Default or Cash Collateral Event has occurred (including pursuant to the statement financial covenant contained in Section 7.01 as demonstrated in reasonable detail) or, if such an Event of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition Default or Default or Cash Collateral Event has occurred, specifying the nature and the extent thereof and any corrective action which Argosy proposes taken or proposed to take be taken with respect thereto;
(vid) If requested by promptly after the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedsame become publicly available, copies of (A) all registration statements and reports filed by Argosy it with the SEC (other than reports on Form 8-K which are filed solely for the purpose of filing exhibits), or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or Governmental Authority succeeding to any of its Subsidiaries or all the functions of the SEC, or distributed to its security holdersshareholders, and (C) all press releases and other similar public announcements concerning any material developments in as the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallycase may be;
(viie) As as soon as available, and in any event not no later than forty-five (45) days after the commencement fifteenth day of each fiscal year month, a report substantially in the form of ArgosyExhibit G providing (i) for each account subject to a Control Agreement, the budget institution where each such account is held and projected financial statements the bank balance of each such account as of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow last day of the Loan Partiesprevious month, (ii) information as to all cash held by the Borrower and its Subsidiaries as of the end of the previous month, including a designation of whether such cash is restricted or freely available, the amount of available cash maintained in reasonable detail domestic and foreign accounts, and the amount of such cash held in accounts not subject to Control Agreements, (iii) a list of Permitted Investments held by the Borrower or any Subsidiary on the last day of the previous month, the type of each such Permitted Investment and the value of such Permitted Investment on the last day of the previous month; and (iv) a calculation demonstrating compliance with Section 6.01(b);
(f) as soon as available, and in any event to include projected Capital Expenditures and quarterly projections no later than 30 days after the end of each fiscal quarter (i) a list of each item of External Sharing Debt (other than External Sharing Debt described in clause (e) of the Borrowers' compliance with each defined term “External Sharing Debt”) outstanding on the last Business Day of such quarter including, where applicable, the outstanding amount thereof, (ii) a list of the covenants set forth Material Subsidiaries in SECTION 5.03 existence on the last Business Day of this such quarter and (iii) an updated version of Schedule 5 to the Guarantee and Collateral Agreement;
(viiig) As as soon as possible available, and in any event no event later than ten (10) 30 days prior after the end of each fiscal year, an updated version of Schedule 4 to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible Guarantee and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesCollateral Agreement; and
(xih) Such promptly following any request therefor, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and financial condition of the Borrower or any Subsidiary, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Agreement, as the Administrative Agent or any Lender Bank (through the Administrative Agent) may from time to time reasonably request. Reports and financial statements required to be delivered pursuant to paragraphs (a), (b) and (d) of this Section 5.02 shall be deemed to have been delivered on the date on which the Borrower posts such reports, or reports containing such financial statements, on the Borrower’s website on the Internet at w▇▇.▇▇▇▇▇▇.▇▇▇ or when such reports, or reports containing such financial statements, are posted on the SEC’s website at w▇▇.▇▇▇.▇▇▇; provided that the Borrower shall deliver paper copies of the reports and financial statements referred to in paragraphs (a), (b) and (d) of this Section 5.02 to the Administrative Agent or any Bank who requests the Borrower to deliver such paper copies until written notice to cease delivering paper copies is given by the Administrative Agent or such Bank.
Appears in 1 contract
Sources: Letter of Credit Issuance and Reimbursement Agreement (Lucent Technologies Inc)
Financial Statements, Reports, etc. The Borrowers shall Borrower will maintain, for ----------------------------------- itself and the Guarantors and each of their Subsidiaries, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(i) As soon as available and available, but in no any event not later than forty-five (45) 60 days after the last day of each close of the first three fiscal quarters of each fiscal year of Argosy, a copy and 105 days after the close of the Financial Statements of Argosy fiscal year, for the Consolidated Group a quarterly financial statement (including a balance sheet and its Subsidiaries prepared on a consolidated basis income statement), which may be in the form contained in Form 10-Q and Form 10-K filings as described below, for such quarter period and for the portion of the fiscal year to datethrough the end of such period, setting forth in each case in comparative form the figures for the previous year, all certified by the president Borrower's chief financial officer, treasurer or chief financial accounting officer of Argosy and the annual statement to present fairly in all material respects be audited by the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)Borrower's independent public accounting firm;
(ii) As soon as available and available, but in no any event not later than one hundred, twenty (120) 60 days after the close of the first three fiscal quarters of each fiscal year of Argosy, (A) copies and 105 days after the close of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 fiscal year, audited by independent certified public accountants of recognized national standing acceptable for the Consolidated Group, related reports in form and substance satisfactory to the Administrative Agent, (B) copies all certified by Borrower's chief financial officer, treasurer or chief accounting officer, including a statement of the unqualified opinions (Combined EBITDA and Funds from Operations, a report listing and describing all newly acquired Properties having a value in excess of $25,000,000, including their cash flow, cost and secured or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants unsecured Indebtedness assumed in connection with such acquisition, if any, the Consolidated Group's level of debt, summary Property information for all Properties having a value in excess of $25,000,000, and such Financial Statements and (C) certificates of such accountants other information as may be reasonably requested to evaluate the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement quarterly compliance certificate delivered as to the nature thereofprovided below;
(iii) Contemporaneously Not later than 15 days after the date such reports are filed with the quarterly Securities and yearExchange Commission, copies of all Form 10-end Financial Statements required by Ks, 10-Qs, 8-Ks, and any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information which the foregoing clauses (i) Borrower, the Guarantors or any of their respective Subsidiaries files with the Securities and (ii)Exchange Commission; provided, a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states however, that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day extent any of such quarter or year (as reports contains information required under the case may be)other subsections of this Section 8.2, the calculation of information need not be furnished separately under ----------- the financial ratios and tests provided in SECTION 5.03other subsections;
(iv) Not later than 60 days after the end of each of the first three fiscal quarters, and not later than 105 days after the end of the fiscal year, a compliance certificate in substantially the form of Exhibit H hereto signed by the Borrower's chief financial officer, --------- treasurer or chief accounting officer confirming that Borrower is in compliance with all of the covenants of the Loan Documents as of the end of the last fiscal quarter, showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) and stating that to such officer's best knowledge, no other Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof;
(a) As soon as available possible and in no any event later than forty-five (45) days within 10 Business Days after the last day of each fiscal quarter of ArgosyBorrower or any Guarantor knows that any Reportable Event has occurred with respect to any Plan, a certificate of statement, signed by the chief financial officer or treasurer of Argosy Borrower or such Guarantor, describing said Reportable Event and within 20 days after such Reportable Event, a statement signed by such chief financial officer describing the action which Borrower or such Guarantor proposes to take with respect thereto; and (b) within 10 Business Days of receipt, any notice from the Internal Revenue Service, PBGC or Department of Labor with respect to a "PRICING CERTIFICATE") Plan regarding any excise tax, proposed termination of a Plan, prohibited transaction or fiduciary violation under ERISA or the Code which sets forth the calculation may reasonably be expected to result in any liability to Borrower or such Guarantor or any member of the Total Funded Debt Controlled Group in excess of $10,000,000; and (c) within 10 Business Days of filing, any Form 5500 filed by Borrower or such Guarantor with respect to EBITDA Ratio a Plan, or any member of the Controlled Group which includes a qualified accountant's opinion, except a qualification with respect to assets certified by a third party as of such date;permitted by ERISA.
(vvi) As soon as possible and in no any event later than five within 30 days after receipt by the Borrower or any Guarantor, a copy of (5a) Business Days after any officer notice or claim to the effect that the Borrower or any Guarantor or any of their respective -45- Subsidiaries is or may be liable to any Person as a result of the release by such entity, or any of its Subsidiaries, or any other Person of any Loan Party knows of toxic or hazardous waste or substance into the occurrence or existence of environment, and (Ab) any Reportable Event under notice alleging any Employee Benefit Plan violation of any federal, state or Multiemployer Planlocal environmental, (B) health or safety law or regulation by the Borrower or any actual Guarantor or threatened litigationany of their respective Subsidiaries or Investment Affiliates, suitswhich, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate)either case, (C) any other event or condition which is may reasonably likely be expected to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vivii) If requested by Promptly upon the Administrative Agent furnishing thereof to the shareholders of the Borrower or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedGuarantor, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Qfinancial statements, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries other materials distributed generally to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in shareholders by the business of Argosy Borrower or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this AgreementGuarantor;
(viii) As soon as possible and in no event later than ten (10) days prior Promptly upon the distribution thereof to the acquisition by any Loan Party press or the public, copies of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);all press releases; and
(ix) As soon as possible Such other information (including, without limitation, a detailed listing of the Properties owned by each member of the Consolidated Group, all ▇▇▇▇▇▇▇▇ Associates, Inc. (or other appraiser's) reports and updates described in no event later than five clause (5c) Business Days after of the receipt thereof by Argosy or any definition of its Subsidiaries"Gross Asset Value" and, copies of any and all material notices to the extent reasonably available, each Investment Affiliate and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(xnon-financial information) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request, provided the Administrative Agent and each Lender shall take all reasonable steps to maintain the confidentiality of such information and any confidential information obtained under Section 8.8 below, except for disclosure to regulatory agencies, to ----------- their accountants, attorneys and other professional service providers, to prospective assignees and participants and as otherwise may be required by law.
Appears in 1 contract
Sources: Credit Agreement (Rouse Company)
Financial Statements, Reports, etc. The Borrowers shall In the case of the Borrower, furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As as soon as available and in no any event later than forty-five (45) within 110 days after the last day end of each fiscal year, consolidated balance sheets and the related statements of income and cash flows of the Borrower and its Subsidiaries (the Borrower and its Subsidiaries being collectively referred to as the "Companies") as of the close of such fiscal year (which requirement shall be deemed satisfied by the delivery of the Borrower's Annual Report on Form 10-K (or any successor form) for such year), all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Companies on a consolidated basis in accordance with GAAP consistently applied;
(b) within 65 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ended March 31, 2007), consolidated balance sheets and related statements of Argosy, a copy income and cash flows of the Companies as of the close of such fiscal quarter and the then elapsed portion of the fiscal year (which requirement shall be deemed satisfied by the delivery of the Borrower's Quarterly Report on Form 10-Q (or any successor form) for such quarter), each certified by a Financial Statements Officer as fairly presenting the financial condition and results of Argosy and its Subsidiaries prepared operations of the Companies on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundredconcurrently with any delivery of financial statements under paragraph (a) or (b) of this Section 5.02, twenty (120) days after the close a certificate of each fiscal year of Argosy, (A) copies a Financial Officer of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable Borrower (i) certifying as to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, whether a Default has occurred and, if a Default has occurred, specifying the details thereof and is continuing, a statement as any action taken or proposed to the nature thereof;
(iii) Contemporaneously be taken with the quarterly and year-end Financial Statements required by the foregoing clauses (i) respect thereto and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy ) setting forth reasonably detailed calculations (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take including with respect thereto; (Bto any pro forma effect given to a Material Transaction) sets forth, for the quarter or year covered by such Financial Statements or demonstrating compliance with Section 6.07 as of the last day of the most recent fiscal quarter covered by such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03statements;
(ivd) As soon as available promptly upon the mailing or filing thereof, copies of all financial statements, reports and in no event later proxy statements mailed to the Borrower's public shareholders, and copies of all registration statements (other than fortythose on Form S-8) and Form 8-five K's (45) days after to the last day extent that such Form 8-K's disclose actual or potential adverse developments with respect to the Borrower or any of each fiscal quarter of Argosyits Subsidiaries that constitute, or could reasonably be anticipated to constitute, a certificate of Material Adverse Effect) filed with the chief financial officer Securities and Exchange Commission (or treasurer of Argosy (a "PRICING CERTIFICATE"any successor thereto) which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such dateor any national securities exchange;
(ve) As soon as possible and in no event later than five promptly after (5i) Business Days after any officer the occurrence thereof, notice of any Loan Party knows ERISA Termination Event or "prohibited transaction", as such term is defined in Section 4975 of the occurrence Code, with respect to any Plan that results, or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plancould reasonably be anticipated to result, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, which notice shall specify the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default nature thereof and the action which Argosy proposes to take with respect Borrower's proposed response thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (Cii) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariesactual knowledge thereof, copies of any and all material notices and other material adverse communications from notice of PBGC's intention to terminate or to have a trustee appointed to administer any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesPlan; and
(xif) Such promptly, from time to time, such other instrumentsinformation, agreementsregarding its operations, certificatesbusiness affairs and financial condition, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Agreement, as the Administrative Agent or any Lender may from time to time reasonably request.
(i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by Section 5.02(c) to the Administrative Agent. Except for such compliance certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall Borrower will furnish to the Administrative AgentAgent and each Bank:
(a) prior to the consummation of the Alcatel Merger, no later than the date on which such statements are required to be filed with sufficient copies for each Lenderthe SEC, its consolidated balance sheets and the followingrelated statements of income and cash flows, each showing its consolidated financial condition as of the close of such fiscal year and the consolidated results of its operations during such year, all audited by PricewaterhouseCoopers LLP or other independent auditors of recognized national standing and accompanied by an opinion of such auditors to the effect that such consolidated financial statements fairly present its financial condition and results of operations on a consolidated basis in such form and such detail accordance with GAAP consistently applied, except as the Administrative Agent or the Required Lenders shall reasonably request:noted therein;
(i) As soon as available and in prior to the consummation of the Alcatel Merger, no event later than forty-five (45) days after the last day date on which such statements are required to be filed with the SEC, its consolidated balance sheets and related statements of income and cash flows for each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy showing its consolidated financial condition as of the Financial Statements close of Argosy and its Subsidiaries prepared on a consolidated basis for such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then elapsed portion of such fiscal year, together with the certification by one of its Financial Officers as required under Section 302 of the Sarbanes-Oxley Act; and (ii) upon and following the consummation of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇rger, no later than 60 days following the end of any of the first three fiscal quarters of each fiscal year or 75 days following the end of the fiscal year, (x) for the fiscal year to datequarter during which the Alcatel Merger is consummated, certified by its unaudited consolidated balance sheet as of the president or chief close of such fiscal quarter, and (y) for any other fiscal quarter, its unaudited consolidated balance sheet and the related statement of income, showing its consolidated financial officer condition as of Argosy to present fairly in all material respects the financial condition, close of such fiscal quarter and the consolidated results of its operations and during such fiscal quarter, in each case in addition to such other information reflected therein regarding the operations, business affairs and to have been prepared financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Bank (through the Administrative Agent) may reasonably request in accordance with GAAP (subject to normal year-end audit adjustmentsSection 6.02(h);
(iic) As soon as available and in no event later than one hundred, twenty concurrently with any delivery of financial statements under paragraph (120a) days after the close of each fiscal year of Argosy, or (Ab) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosyabove, a certificate of the chief financial officer or treasurer a Financial Officer certifying that no Event of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition Default or Default has occurred (including pursuant to the financial covenant contained in Article VIII as demonstrated in reasonable detail) or, if such an Event of Default or Default has occurred, specifying the nature and the extent thereof and any corrective action which Argosy proposes taken or proposed to take be taken with respect thereto;
(vid) If requested by promptly after the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedsame become publicly available, copies of (A) all registration statements and reports filed by Argosy it with the SEC (other than reports on Form 8-K which are filed solely for the purpose of filing exhibits), or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or Governmental Authority succeeding to any of its Subsidiaries or all the functions of the SEC, or distributed to its security holdersshareholders, and (C) all press releases and other similar public announcements concerning as the case may be, including, following the consummation of the Alcatel Merger, any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallyForm 20-F filings;
(viie) As as soon as available, and in any event not no later than forty-five (45) days after the commencement fifteenth day of each fiscal year month, a report substantially in the form of ArgosyExhibit G providing (i) for each account subject to a Control Agreement, the budget institution where each such account is held and projected financial statements the bank balance of each such account as of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow last day of the Loan Partiesprevious month, (ii) information as to all cash held by the Borrower and its Subsidiaries as of the end of the previous month, including a designation of whether such cash is restricted or freely available, the amount of available cash maintained in reasonable detail domestic and foreign accounts, and the amount of such cash held in accounts not subject to Control Agreements, (iii) a list of Permitted Investments held by the Borrower or any Subsidiary on the last day of the previous month, the type of each such Permitted Investment and the value of such Permitted Investment on the last day of the previous month; and (iv) a calculation demonstrating compliance with Section 7.01(b); PROVIDED, that upon and following the consummation of the Alcatel Merger, the Borrower shall not be required to comply with clauses (ii) and (iii) of this Section 6.02(e);
(f) as soon as available, and in any event to include projected Capital Expenditures and quarterly projections no later than 30 days after the end of each fiscal quarter (i) a list of each item of External Sharing Debt (other than External Sharing Debt described in clause (e) of the Borrowers' compliance with each defined term "External Sharing Debt") outstanding on the last Business Day of such quarter including, where applicable, the outstanding amount thereof, (ii) a list of the covenants set forth Material Subsidiaries in SECTION 5.03 existence on the last Business Day of this Agreement;
such quarter and (viiiiii) As soon as possible and in no event later than ten (10) days prior an updated version of Schedule 5 to the acquisition by any Loan Party Guarantee and Collateral Agreement; PROVIDED, that upon and following the consummation of any leasehold or ownership interest in real property the Alcatel Merger, the Borrower shall not be required to comply with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(hthis Section 6.02(f);
(ixg) As as soon as possible available, and in any event no event later than five (5) Business Days 30 days after the receipt thereof by Argosy or any end of its Subsidiarieseach fiscal year, copies an updated version of any Schedule 4 to the Guarantee and all material notices Collateral Agreement; PROVIDED, that upon and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon following the request consummation of the Administrative Agent or any LenderAlcatel Merger, copies of any and all periodic or special reports filed by any Loan Party the Borrower shall not be required to comply with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagesthis Section 6.02(g); and
(xih) Such promptly following any request therefor, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and financial condition of the Borrower or any Subsidiary, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Agreement, as the Administrative Agent or any Lender Bank (through the Administrative Agent) may from time to time reasonably request. Reports and financial statements required to be delivered pursuant to paragraphs (a), (b) and (d) of this Section 6.02 shall be deemed to have been delivered on the date on which the Borrower posts such reports, or reports containing such financial statements, on the Borrower's website on the Internet at www.lucent.com or when such reports, or reports containing such fina▇▇▇▇▇ ▇▇▇▇▇▇▇▇ts, are posted on the SEC's website at www.sec.gov; provided that the Borrower shall deliver paper copies o▇ ▇▇▇ ▇▇▇▇▇ts and financial statements referred to in paragraphs (a), (b) and (d) of this Section 6.02 to the Administrative Agent or any Bank who requests the Borrower to deliver such paper copies until written notice to cease delivering paper copies is given by the Administrative Agent or such Bank.
Appears in 1 contract
Sources: Letter of Credit Issuance and Reimbursement Agreement (Lucent Technologies Inc)
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, Lender the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each quarter (other than the last quarter of the first three Borrower's fiscal quarters of each fiscal year of Argosyyear), a copy copies of the Financial Statements of Argosy and its Subsidiaries the Loan Parties (prepared on a consolidated basis basis) and the balance sheets and statements of income of the Loan Parties (prepared on a consolidating basis) for such quarter (beginning with the quarter ending September 30, 2011 and thereafter) and for the fiscal year to date, each certified by the president president, chief executive officer, chief operating officer or chief financial officer of Argosy the Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), which Financial Statements and balance sheets and statements of income shall be accompanied by a narrative (as set forth in the related Form 10-Q) from management of the Borrower which discusses results;
(ii) As soon as available and in no event later than one hundred, twenty ninety (12090) days after the close of fiscal year 2011 and each fiscal year of Argosythereafter, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries the Loan Parties (prepared on a consolidated basis for such 82 yearbasis) and the balance sheets and statements of income of the Loan Parties (prepared on a consolidating basis), audited (as to the consolidated Financial Statements) by an independent certified public accountants of recognized national standing acceptable to the Administrative Agent, which Financial Statements shall be accompanied by a narrative (as set forth in the related Form 10-K) from management of the Borrower which discusses results and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that prepared in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofaccordance with GAAP;
(iii) Contemporaneously with the quarterly and year-end Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), a compliance certificate of the president president, chief executive officer, chief operating officer or chief financial officer or treasurer of Argosy the Borrower in substantially the form of Exhibit H (a "COMPLIANCE CERTIFICATE"“Compliance Certificate”) which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; , (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION Section 5.03, and (C) sets forth information and computations related to Sections 5.01(i), 5.02(a), 5.02(b), 5.02(d), 5.02(e) and 5.02(f) of this Agreement and any other provisions of the Credit Documents required to be included in such Compliance Certificate;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer PlanERISA Event, (B) any threatened (in writing) or actual or threatened litigation, suits, claims claims, disputes or disputes investigations against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate)) or in which injunctive relief or similar relief is sought, which relief, if granted, could have a Material Adverse Effect, (C) any other event or condition which is (including (I) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Guarantor, including pursuant to any applicable Environmental Laws) which, either individually or in the aggregate, could reasonably likely be expected to have a Material Adverse Effect, or ; (D) any DefaultDefault or any default under any Subordinated Obligations, the statement of a Responsible Officer of the president or chief financial officer or treasurer of Argosy Borrower setting forth details of such event, condition condition, default or Default and the action which Argosy the Borrower proposes to take with respect thereto, or (E) any material change in accounting policies of or financial reporting practices by the applicable Loan Party. Each notice pursuant to this Section 5.01(a)(iv) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(iv) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(viiv) As soon as available, and in any event not later than forty-five thirty (4530) days after the commencement of each fiscal year of Argosythe Borrower, the budget and projected financial statements of the Loan Parties (on a consolidated basis) for such fiscal yearyear (detailed on a quarterly basis) prepared on a basis consistent with historical financial statements, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan PartiesParties (on a consolidated basis), all in reasonable detail and with assumptions and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' Borrower's compliance with each of the covenants set forth in SECTION Section 5.03 of this Agreement;
(viiivi) As soon as possible and in no event later than five (5) Business Days prior to the occurrence of any event or circumstance that would require a prepayment pursuant to Section 2.06(c), the statement of the president, chief executive officer, chief operating officer or chief financial officer of the Borrower setting forth the details thereof;
(vii) As soon as possible and in no event later than ten (10) days prior to after such establishment, acquisition or issuance, written notice of the establishment or acquisition by any a Loan Party of any leasehold new Subsidiary or ownership interest in real property with a fair market value the issuance of $10,000,000 or more, a written supplement to SCHEDULE 4.01(hany new Equity Securities of any existing Loan Party (other than the Borrower);
(ixviii) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any a Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its SubsidiariesParty, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries a Loan Party for Environmental Damages;
(ix) As soon as possible and in no event later than ten (10) days after the acquisition by any Loan Party of any leasehold or ownership interest in real property, a written supplement to Schedule 4.01(h);
(x) As soon as possible after the sending or filing thereof, copies of any proxy statements, financial statements or reports that the Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by the Borrower to the public concerning material changes to or developments in the business of such Borrower; and
(xi) Contemporaneously with the Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), the notices of security interest described in Section 4(a) of the Intellectual Property Security Agreement with respect to the period covered by such financial statements and the notices described in Section 4(h) and Section 4(k) of the Intellectual Property Security Agreement with respect to the period covered by such financial statements;
(xii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of Argosy or its Subsidiariesthe Loan Parties, and compliance by the Borrowers Borrower with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 5.01(a) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Borrower's behalf on IntraLinks or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents and the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (the “Borrower Materials”) by posting the Borrower Materials on one or more Platforms and (b) certain of the Lenders may be “public-side” Lenders (i.e. Lenders that do not wish to receive non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Borrower hereby agrees that if at any time the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all Borrower Material that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials “PUBLIC” the Borrower shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state security laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 8.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
Appears in 1 contract
Sources: Credit Agreement (Valueclick Inc/Ca)
Financial Statements, Reports, etc. The Borrowers shall Maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(i) As soon as available, but in any event not later than 45 days after the close of the first three fiscal quarters and not later than 90 days after the close of the fiscal year, for the Consolidated Group an unaudited consolidated balance sheet as of the close of each such period and the related unaudited consolidated statements of income and retained earnings and of cash flows of the Consolidated Group for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, all certified by the chief financial officer or chief accounting officer of Brad▇▇▇ ▇▇▇l Estate, Inc. and, in the case of the annual statement audited by the Consolidated Group's independent public accounting firm;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for the Consolidated Group, related reports in form and substance reasonably satisfactory to the Lenders, all certified by the chief financial officer or chief accounting officer of Brad▇▇▇ Real Estate, Inc., including a statement of Funds From Operations, a listing of Unencumbered Assets, a report listing and describing all newly acquired Properties, including their budgeted cash flow, cost and secured or unsecured Indebtedness assumed in connection with such acquisition, if any, summary Property information for all Properties, including, without limitation, their Property Operating Income, occupancy rates, square footage, and such other information as may be reasonably requested to evaluate the quarterly compliance certificate delivered as provided below;
(iii) As soon as publicly available and but in no event later than the date such reports are to be filed with the Securities & Exchange Commission, copies of all Form 10Ks, 10Qs, 8Ks, and any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information which any member of the Consolidated Group files with the Securities & Exchange Commission and to the extent any of such reports contains information required under the other subsections of this Section 8.2, the information need not be furnished separately under the other subsections;
(iv) As soon as available, but in any event not later than 90 days after the close of each fiscal year of the Consolidated Group, reports in form and substance reasonably satisfactory to the Lenders, certified by the chief financial officer or chief accounting officer of Brad▇▇▇ ▇▇▇l Estate, Inc. containing Property Operating Income for each individual Property included as Unencumbered Assets;
(v) Not later than forty-five (45) days after the last day end of each of the first three fiscal quarters quarters, and not later than ninety (90) days after the end of each the fiscal year of Argosyyear, a copy compliance certificate in substantially the form of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified Exhibit G hereto signed by the president or chief financial officer or chief accounting officer of Argosy Brad▇▇▇ ▇▇▇l Estate, Inc. on behalf of the Borrower confirming that Borrower is in compliance with all of the covenants of the Loan Documents, showing the calculations and computations necessary to present fairly in all material respects determine compliance with the financial conditioncovenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) and stating that to such officer's best knowledge, results there is no other Known Default or Event of operations Default exists, or if any Known Default or Event of Default exists, stating the nature and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)status thereof;
(iia) As soon as available reasonably possible and in no any event later than one hundredwithin 10 Business Days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, twenty (120) a statement, signed by Borrower, describing said Reportable Event and within 20 days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuingReportable Event, a statement as to describing the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") action which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; and (Bb) sets forthwithin 10 Business Days of receipt, for any notice from the quarter Internal Revenue Service, PBGC or year covered by such Financial Statements Department of Labor with respect to a Plan regarding any excise tax, proposed termination of a Plan, prohibited transaction or as fiduciary violation under ERISA or the Code which could result in any liability to Borrower or any member of the last day Controlled Group in excess of such quarter $100,000; and (c) within 10 Business Days of filing, any Form 5500 filed by Borrower with respect to a Plan, or year (as the case may be), the calculation any member of the financial ratios and tests provided in SECTION 5.03;Controlled Group which includes a qualified accountant's opinion.
(ivvii) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as reasonably possible and in no any event later than five within 30 days after receipt by the Borrower, a copy of (5a) Business Days after any officer notice or claim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by such entity, or any of its Subsidiaries, or any other Person of any Loan Party knows of toxic or hazardous waste or substance into the occurrence or existence of environment, and (Ab) any Reportable Event under notice alleging any Employee Benefit Plan violation of any federal, state or Multiemployer Planlocal environmental, (B) health or safety law or regulation by the Borrower or any actual of its Subsidiaries or threatened litigationInvestment Affiliates, suitswhich, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate)either case, (C) any other event or condition which is could be reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior Promptly upon the furnishing thereof to the acquisition by any Loan Party shareholders of any leasehold or ownership interest in real property with a fair market value the General Partner, copies of $10,000,000 or moreall financial statements, a written supplement to SCHEDULE 4.01(h)reports and proxy statements so furnished;
(ix) As soon as possible and in no event later than five (5) Business Days after Promptly upon the receipt distribution thereof by Argosy to the press or any of its Subsidiariesthe public, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facilitypress releases;
(x) As soon as possible reasonably possible, and in no any event later than five (5) Business Days within 10 days after the receipt thereof by Argosy Borrower knows of any fire or other casualty or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected pending or threatened material violation of any Environmental Law, condemnation or eminent domain proceeding with respect to all or any material liability portion of Argosy any Unencumbered Asset, a statement signed by the chief financial officer of Brad▇▇▇ ▇▇▇l Estate, Inc., describing such fire, casualty or any of its Subsidiaries for Environmental Damagescondemnation and the action Borrower intends to take with respect thereto; and
(xi) Such other instrumentsinformation (including, agreementswithout limitation, certificates, opinions, statements, documents and information relating to the operations or condition (non-financial or otherwiseinformation) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (Bradley Real Estate Inc)
Financial Statements, Reports, etc. The Borrowers Company shall furnish to each ------------------------------------ Purchaser which, together with its Affiliates, purchases and continues to own at least 10% of the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestShares:
(ia) As soon as available and in no event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) within 90 days after the commencement end of each fiscal year of Argosythe Company, (i) an audited financial statement of the budget Company as of the end of such fiscal year; (ii) the related statements of income, stockholders' equity and projected cash flows for the fiscal year then ended, prepared in accordance with GAAP and certified by Grant Thornton LLP or another firm of independent public accountant▇ ▇▇ ▇▇▇▇▇▇▇▇▇d national standing selected by the board of directors of the Company (the "Annual Financial Statements"); and (iii) any related management letters from such accounting firm.
(b) as soon as available, and in any event within 30 days after the end of each month in each fiscal year a balance sheet of the Company, and the related statement of income (with statements of stockholders' equity and cash flows to be provided quarterly), unaudited but prepared in accordance with GAAP (except that such unaudited financial statements need not contain all of the Loan Parties required footnotes and are subject to normal, recurring, non-material year-end adjustments) and certified by the chief financial officer of the Company (the "Monthly Balance Sheet"). The Monthly Balance Sheet should be prepared as of the end of such month with statements of income, stockholders' equity and cash flows for such month and for the period from the beginning of the fiscal year to the end of such month, in each case with comparative statements for the prior fiscal year and the most recent 12-month budget delivered by the Company pursuant to Section 6.9(c) hereof;
(c) as soon as available and in any event no later than 30 days prior to the start of each fiscal year an annual business plan and capital and operating expense budget, cash flow projections and income and loss projections for the Company, in respect of such fiscal year, including, in each case, projected balance sheets, statements as approved by the board of income and retained earnings and statements of cash flow directors of the Loan Parties, Company and all itemized in reasonable detail and in prepared on a quarterly basis, and, promptly after preparation, any event revisions to include projected Capital Expenditures and quarterly projections any of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
foregoing; (viiid) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information document relating to the operations or condition (financial or otherwise) affairs of Argosy or its Subsidiaries, and compliance the Company delivered by the Borrowers with Company to any shareholders of the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.Company; and
Appears in 1 contract
Sources: Securities Purchase Agreement (International Airline Support Group Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestBank:
(ia) As as soon as available and available, but in no any event later than forty-five (45) within 90 days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Company, a copy of (i) the Financial Statements audited consolidated balance sheet of Argosy the Company and its Subsidiaries prepared on a as of the end of such year and the related audited consolidated basis statements of income, retained earnings and cash flow for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited accompanied by a report thereon of independent certified public accountants of recognized national standing acceptable selected by the Company and satisfactory to the Administrative AgentBank (the "Auditor"), which report shall be unqualified; and (Bii) copies the management prepared consolidating financial statements of the unqualified opinions Company and its Subsidiaries which support the financial statements delivered pursuant to clause (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofi);
(iiib) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and but in any event not later than forty-five (45) 60 days after the commencement end of each quarterly period of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its SubsidiariesCompany, a copy of any noticethe unaudited interim consolidated and consolidating balance sheet of the Company and its Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated and consolidating statements of income, summonsretained earnings and cash flow for such quarter and the portion of the fiscal year through such date;
(c) with each delivery required by (a) and (b) above, citations a certificate prepared and signed by the Auditor (with respect to (a) only) and the Chief Financial Officer, respectively, as to whether or other written communications concerning any actualnot, allegedas of the close of such preceding period and at all times during such preceding period, suspected the Company was in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Auditor or threatened material violation Chief Financial Officer, as the case may be, shall have obtained knowledge of any Environmental Lawdefault in such compliance or notice of such default, it shall disclose in such certificate such default or any material liability defaults or notice thereof and the nature thereof, whether or not the same shall constitute an Event of Argosy Default hereunder;
(d) at all times indicated in (a) above, a copy of the management letter, if any, prepared by the Auditor;
(e) promptly, after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which the Company or any of its Subsidiaries for Environmental Damagesshall file with the Securities and Exchange Commission, including, without limitation, the Company's annual report on Form 10-K and quarterly report on Form 10-Q;
(f) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which would not result in any adverse action to be taken by such agency; and
(xig) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and condition, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) , of Argosy the Company or any of its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Subsidiaries as the Administrative Agent or any Lender Bank may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Superior Surgical Manufacturing Co Inc)
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Borrower (other than the first three fiscal quarters last quarter of each fiscal year of Argosyyear), a copy of the Financial Statements of Argosy Borrower and its Subsidiaries (prepared on a consolidated basis basis) for such quarter and for the fiscal year to date, certified by the president or chief financial officer or treasurer of Argosy Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty five (120105) days after the close of each fiscal year of ArgosyBorrower, (A) copies of the audited Financial Statements of Argosy Borrower and its Subsidiaries (prepared on a consolidated basis basis) for such 82 year, audited by Deloitte & Touche or other independent certified public accountants of recognized national standing or otherwise reasonably acceptable to the Administrative AgentAgent and Required Lenders, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative AgentAgent and Required Lenders) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement Paragraph 5.03 and have obtained no knowledge of any Default which has occurred violation by Borrower and is continuingits Subsidiaries of the covenants set forth therein, or if, in the opinion of such accountants, a Default any such violation has occurred and is continuingoccurred, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy Borrower in a form acceptable to Agent (a "COMPLIANCE CERTIFICATECompliance Certificate") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; thereto and (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION Paragraph 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of ArgosyBorrower, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") Borrower which sets forth forth, for the consecutive four quarter period ending on the last day of such quarter, the calculation of the Total Funded Debt to Borrower's EBITDA and Senior Debt/EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreementperiod;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Company shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestInvestors:
(ia) As soon within ninety (90) days (or such shorter period of time as available shall be required by the SEC in connection with the filing of the Company’s quarterly reports with the SEC under the Exchange Act) after the end of each fiscal year of the Company ending on or after December 31, 2008, a balance sheet of the Company as of the end of such fiscal year and the related statements of income, stockholders’ equity and cash flows for the fiscal year then ended, prepared in no event later than accordance with GAAP and certified by a firm of independent public accountants;
(b) within forty-five (45) days (or such shorter period of time as shall be required by the SEC in connection with the filing of the Company’s annual reports with the SEC under the Exchange Act) after the last day of each of the first three fiscal quarters end of each fiscal quarter in each fiscal year of Argosy, a copy (other than the last fiscal quarter in each fiscal year) an unaudited balance sheet of the Company and the related unaudited statements of income, stockholders’ equity and cash flows, and certified by the Chief Financial Statements Officer of Argosy the Company, such balance sheet to be as of the end of such fiscal quarter and its Subsidiaries prepared on a consolidated basis such statements of income, stockholders’ equity and cash flows to be for such fiscal quarter and for the period from the beginning of the fiscal year to datethe end of such fiscal quarter, certified by in each case with comparative statements for the president or chief financial officer of Argosy to present fairly corresponding period in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal prior fiscal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundred, twenty (120) days promptly after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required receipt by the foregoing clauses (i) and (ii)Company of notice thereof, a compliance certificate notice of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigationall actions, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate)claims, (C) any other event or condition which is reasonably likely to proceedings, investigations and inquiries that could have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xid) Such other instrumentspromptly, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time time, such other information regarding the business, financial condition, operations, property or affairs of the Company and its subsidiaries as the Investors may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 100 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders’ equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) As soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit D) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit D hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.6 and 6.7;
(vd) As soon as possible and in no event later than five (5) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and
(Ae) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of (i) the institution of any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any Reportable Event under material development in any Employee Benefit Plan such action, suit, proceeding, investigation or Multiemployer Plan, arbitration (B) any actual whether or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in not previously disclosed to the aggregateLenders), (C) any other event or condition which is which, in each case might reasonably likely be expected to have a Material Adverse Effect, or prompt notice thereof and such other information as may be reasonably available to it (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestevaluate such matters.
Appears in 1 contract
Sources: Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers shall In the case of the Borrower, furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As as soon as available and in no any event later than forty-five (45) within 110 days after the last day end of each fiscal year, consolidated balance sheets and the related statements of income and cash flows of the Borrower and its Subsidiaries (the Borrower and its Subsidiaries being collectively referred to as the “Companies”) as of the close of such fiscal year (which requirement shall be deemed satisfied by the delivery of the Borrower’s Annual Report on Form 10-K (or any successor form) for such year), all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Companies on a consolidated basis in accordance with GAAP consistently applied;
(b) within 65 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending on or prior to the Effective Date for which financial statements have not been delivered pursuant to Section 4.01(k), consolidated balance sheets and related statements of Argosy, a copy income and cash flows of the Financial Statements Companies as of Argosy and its Subsidiaries prepared on a consolidated basis for the close of such fiscal quarter and for the then elapsed portion of the fiscal year to date(which requirement shall be deemed satisfied by the delivery of the Borrower’s Quarterly Report on Form 10-Q (or any successor form) for such quarter), each certified by the president or chief financial officer of Argosy to present a Financial Officer as fairly presenting in all material respects the financial condition, condition and results of operations and other information reflected therein and to have been prepared of the Companies on a consolidated basis in accordance with GAAP (consistently applied, subject to the absence of footnotes and normal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundredconcurrently with any delivery of financial statements under paragraph (a) or (b) of this Section 5.02, twenty (120) days after the close a certificate of each fiscal year of Argosy, (A) copies a Financial Officer of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable Borrower (i) certifying as to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, whether a Default has occurred and, if a Default has occurred, specifying the details thereof and is continuing, a statement as any action taken or proposed to the nature thereof;
(iii) Contemporaneously be taken with the quarterly and year-end Financial Statements required by the foregoing clauses (i) respect thereto and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy ) setting forth reasonably detailed calculations (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take including with respect thereto; (Bto any pro forma effect given to a Material Transaction) sets forth, for the quarter or year covered by such Financial Statements or demonstrating compliance with Section 6.07 as of the last day of the most recent fiscal quarter covered by such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03statements;
(ivd) As soon as available promptly upon the mailing or filing thereof, copies of all financial statements, reports and in no event later proxy statements mailed to the Borrower’s public shareholders, and copies of all registration statements (other than fortythose on Form S-8) and Form 8-five K’s (45) days after to the last day extent that such Form 8-K’s disclose actual or potential adverse developments with respect to the Borrower or any of each fiscal quarter of Argosyits Subsidiaries that constitute, or could reasonably be anticipated to constitute, a certificate of Material Adverse Effect) filed with the chief financial officer Securities and Exchange Commission (or treasurer of Argosy (a "PRICING CERTIFICATE"any successor thereto) which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such dateor any national securities exchange;
(ve) As soon as possible and in no event later than five promptly after (5i) Business Days after any officer the occurrence thereof, notice of any Loan Party knows ERISA Termination Event or “prohibited transaction”, as such term is defined in Section 4975 of the occurrence Code, with respect to any Plan that results, or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plancould reasonably be anticipated to result, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, which notice shall specify the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default nature thereof and the action which Argosy proposes to take with respect Borrower’s proposed response thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (Cii) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariesactual knowledge thereof, copies of any and all material notices and other material adverse communications from notice of PBGC’s intention to terminate or to have a trustee appointed to administer any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesPlan; and
(xif) Such promptly, from time to time, such other instrumentsinformation, agreementsregarding its operations, certificatesbusiness affairs and financial condition, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request. Documents required to be delivered pursuant to Section 5.02(a), (b) or (d) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission (or any successor thereto)) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto at ▇▇▇.▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by Section 5.02(c) to the Administrative Agent. Except for such compliance certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Sources: Credit Agreement (New Communications Holdings Inc.)
Financial Statements, Reports, etc. The Borrowers Until the repayment or satisfaction of the Promissory Note in full and so long as PPD has a right to purchase or holds, in the aggregate, 750,000 or more of the Warrant Shares or Conversion Shares, or a combination thereof (which number of shares shall be proportionately adjusted for stock splits, combinations, reclassifications, mergers, consolidations, reorganizations or otherwise), the Company shall furnish to PPD (and to any holder of the Administrative Agent, with sufficient copies for each LenderWarrant, the followingWarrant Shares and/or the Conversion Shares who, in the aggregate, has a right to purchase or holds 750,000 or more of the Warrant Shares or the Conversion Shares, or a combination thereof):
(a) within ninety (90) days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of such fiscal year and the related, consolidated statements of income, stockholders' equity and cash flows for the fiscal year then ended, each reviewed and independently prepared in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:accordance with Generally Accepted Accounting Principles;
(ib) As soon as available and in no event later than within forty-five (45) days after the last day of each of the first three fiscal quarters end of each fiscal quarter in each fiscal year of Argosy(other than the last fiscal quarter in each fiscal year), a copy consolidated balance sheet of the Financial Statements of Argosy Company and its Subsidiaries subsidiaries, if any, and the related consolidated statements of income, stockholders' equity and cash flows, unaudited and internally prepared on a in accordance with Generally Accepted Accounting Principles (other than accompanying notes), such consolidated basis balance sheet to be as of the end of such fiscal quarter and such consolidated statements of income, stockholders' equity and cash flows to be for such fiscal quarter and for the period from the beginning of the fiscal year to datethe end of such fiscal quarter, certified by in each case with comparative statements for the president or chief financial officer prior fiscal year;
(c) within thirty (30) days after the end of Argosy to present fairly each month in all material respects each fiscal year (other than the financial conditionlast month in each fiscal year), results a consolidated balance sheet of operations the Company and other information reflected therein its subsidiaries, if any, and to have been the related consolidated statements of income, stockholders' equity and cash flows, unaudited and internally prepared in accordance with GAAP Generally Accepted Accounting Principles (subject other than accompanying notes), such consolidated balance sheet to normal be as of the end of such month and such consolidated statements of income, stockholders' equity and cash flows to be for such month and for the period from the beginning of the fiscal year to the end of such month, in each case with comparative statements for the prior fiscal year-end audit adjustments);
(iid) As soon as available and in no event later than one hundred, twenty (120) days after at the close time of delivery of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable quarterly statement pursuant to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsSECTION 4.01(b), a Default has occurred management narrative report explaining all significant variances from forecasts, and is continuingall significant current developments in staffing, a statement as to the nature thereofclinical trials, compound development, financings, marketing, sales and operations;
(iiie) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five thirty (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (1030) days prior to the acquisition by start of each fiscal year, consolidated capital and operating expense budgets, cash flow projections and income and loss projections for the Company and its subsidiaries in respect of such fiscal year, all itemized in reasonable detail and prepared on a monthly basis, and, promptly after preparation, any Loan Party revisions to any of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h)the foregoing;
(ixf) As soon as possible and in no event later than five (5) Business Days promptly after the receipt thereof by Argosy commencement thereof, notice of all actions, suits, claims, proceedings, investigations and inquiries of the type described in SECTION 3.08 that could materially adversely affect the Company or any of its Subsidiariessubsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facilityif any;
(xg) As soon as possible promptly upon sending, making available or filing the same, all press releases, reports and in no event later than five (5) Business Days after financial statements that the receipt thereof by Argosy Company sends or any of makes available to its Subsidiariesstockholders, a copy of any notice, summons, citations directors or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damageslenders; and
(xih) Such other instrumentspromptly, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time time, such other information regarding the business, prospects, financial condition, operations, property or affairs of the Company and its subsidiaries as PPD may reasonably request.
Appears in 1 contract
Sources: Loan and Stock Warrant Agreement (Chemokine Therapeutics Corp)
Financial Statements, Reports, etc. The Borrowers Company shall furnish to the Administrative Agenteach Purchaser which, together with sufficient copies for each Lenderits Affiliates, the following, each in such form purchases and such detail as the Administrative Agent or the Required Lenders shall reasonably requestcontinues to own at least 285,714 Shares:
(ia) As soon as available and in no event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) within 90 days after the commencement end of each fiscal year of Argosythe Company, (i) a consolidated audited financial statement of the budget and projected financial Company as of the end of such fiscal year; (ii) the related consolidated statements of income, stockholders' equity and cash flows for the Loan Parties fiscal year then ended, prepared in accordance with GAAP and certified by a firm of independent public accountants of recognized national standing selected by the board of directors of the Company and acceptable to a majority of the Purchasers (the "Annual Financial Statement"); and (iii) any related management letters from such accounting firm. The Audited Financial statements shall be accompanied by a management report describing the state of the Company's business at year end.
(b) as soon as available, and in any event within 30 days after the end of each month in each fiscal year a consolidated balance sheet of the Company, and the related consolidated statement of income (with statements of stockholders' equity and cash flows to be provided quarterly), unaudited but prepared in accordance with GAAP (except that such unaudited financial statement do not contain all of the required footnotes and are subject to normal, recurring non-material year-end adjustments) and certified by the chief financial officer of the Company (the "Monthly Balance Sheet"). The Monthly Balance Sheet should be prepared as of the end of such month with consolidated statements of income, stockholders' equity and cash flows for such month and for the period from the beginning of the fiscal year to the end of such month, in each case with comparative statements for the prior fiscal year and the most recent 12-month budget delivered by the Company pursuant to Section 6.8(c) hereof;
(c) as soon as available and in any event no later than 30 days prior to the start of each fiscal year an annual business plan and consolidated capital and operating expense budget, cash flow projections and income and loss projections for the Company, in respect of such fiscal year, including, in each case, projected balance sheets, statements as approved by the board of income and retained earnings and statements of cash flow directors of the Loan Parties, Company and all itemized in reasonable detail and prepare on a quarterly basis, and, promptly after preparation, any revisions to any of the foregoing;
(d) any document relating to the affairs of the Company delivered to the shareholders of the Company; or
(e) prompt notice, and in any event within five days after notice has been received by the Company, of any material litigation or an adverse claims, dispute or any other developments which could reasonably be expected to include projected Capital Expenditures and quarterly projections be material to operations, assets, or properties of the Borrowers' compliance with each of Company provided, however, that the covenants set forth rights provided in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior Section 6.8 to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority Purchaser shall terminate with respect to any Loan Party or any Gaming Facility and promptly such Purchaser (a) upon the request earlier of a Public Offering or (b) when such Purchaser (or its Affiliates) owns less than fifty percent of the Administrative Agent or any LenderShares, copies (including the Common Stock issuable thereto) purchased by such Purchaser at the Closing; and provided further that the rights provided in this Section 6.8 shall only be transferable to a transferee that acquires and continues to own at least 50% of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance Shares acquired by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestPurchaser hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (MGC Communications Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 100 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal 40 year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) As soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit D) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit D hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.7 and 6.8;
(vd) As soon as possible and in no event later than five (5) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and
(Ae) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of (i) the institution of any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any Reportable Event under material development in any Employee Benefit Plan such action, suit, proceeding, investigation or Multiemployer Plan, arbitration (B) any actual whether or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in not previously disclosed to the aggregateLenders), (C) any other event or condition which is which, in each case might reasonably likely be expected to have a Material Adverse Effect, or prompt notice thereof and such other information as may be reasonably available to it (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestevaluate such matters.
Appears in 1 contract
Sources: Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As Except for the financial statements for the fiscal year ended December 31, 2005, which shall be furnished no later than June 15, 2006, as soon as available and is practicable, but in no any event later than forty-five (45) within 100 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders’ equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10-K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10-K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) Except for the financial statements for the fiscal quarter ended March 31, 2006, which shall be furnished no later than June 15, 2006, as soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit C) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit C hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.6 and 6.7;
(vd) As soon as possible and in no event later than five (5) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and
(Ae) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of (i) the institution of any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any Reportable Event under material development in any Employee Benefit Plan such action, suit, proceeding, investigation or Multiemployer Plan, arbitration (B) any actual whether or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in not previously disclosed to the aggregateLenders), (C) any other event or condition which is which, in each case might reasonably likely be expected to have a Material Adverse Effect, or prompt notice thereof and such other information as may be reasonably available to it (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestevaluate such matters.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Borrower shall maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(i) As soon as available and available, but in no any event not later than forty-five (45) 60 days after the last day close of each of the first three fiscal quarters quarters, for Borrower and its Subsidiaries, an unaudited consolidated balance sheet as of the close of each fiscal year such period and the related unaudited consolidated statements of Argosy, a copy of the Financial Statements of Argosy income and its Subsidiaries prepared on a consolidated basis stockholders equity for such quarter period and for the fiscal year to datedate and cash flows for the year to date of Borrower and its Subsidiaries, certified by setting forth in each case in comparative form the president or chief financial officer of Argosy to present fairly in corresponding figures for the previous year, all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (and all certified as being complete and accurate, subject to normal year-year end audit adjustments), by a Qualified Officer of Borrower, accompanied by a reasonably detailed discussion by such Qualified Officer of material variances from the most recent projections delivered pursuant to Section 8.2(v) hereof;
(ii) Not later than 120 days after the end of each fiscal year and, unless otherwise indicated below, not later than 60 days after the close of each of the first three fiscal quarters, for Borrower and its Subsidiaries, related reports in the form attached hereto as Exhibit K, and in substance and detail satisfactory to the Lenders, all certified by a Qualified Officer of Borrower, including: (a) an update of Schedules 6.1 to this Agreement and, on an annual basis only, within 120 days after the end of each fiscal year, updates to Schedules 6.25 and 6.26 to this Agreement; (b) a calculation of the Borrowing Base; (c) a separate report regarding each category of assets included in such calculation pursuant to one of the numbered subsections of the definition of “Borrowing Base” (which reports shall identify the assets in each such category, identify any Liens on each such asset, show the valuation of each such asset used in such calculation in accordance with such definition and, for any valuation based, in whole or in part, on projections, show a comparison of projections to actual results for the period covered by said report; and which reports relating to Real Estate shall set forth summary information for all Real Estate owned by any Borrower or Subsidiary, including occupancy rates, square footage, property type, date acquired or built, Gross Revenues, Net Operating Income, operating expenses, capital expenditures and the status of development, which information, as to Real Estate not included in the Borrowing Base, need not be furnished on a quarterly basis, but on an annual basis only, within 120 days after the end of each fiscal year); (d) a report listing and describing all newly formed or acquired Subsidiaries and all Real Estate newly acquired by any Borrower or Subsidiary, including the cost of such newly acquired Real Estate and secured or unsecured Indebtedness assumed in connection with the acquisition thereof, if any; (e) a report of all Liens on the Real Estate which, due to their perceived significance, have been specifically brought to the attention of any Qualified Officer, other than the Permitted Liens; (f) a report regarding payment arrearages and other defaults by third Persons under any leases, licenses and other agreements with any Credit Party, or affecting the Real Estate of any Credit Party, that, due to their perceived significance, have come to the attention of any Qualified Officer; and (g) such other information as may be requested (including operating statements) to evaluate the quarterly compliance certificate delivered as provided below;
(iii) As soon as available and but in no event later than one hundredthe third business day after the date such reports are to be filed with the Securities Exchange Commission, twenty copies of any Forms 10K, 10Q, 8K, and any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information which Borrower or any of its Subsidiaries files with the Securities Exchange Commission or any other governmental authority;
(120iv) As soon as available, but in any event not later than 120 days after the close of each fiscal year of ArgosyBorrower and its Subsidiaries, (Aa) copies (i) a consolidated and, if available, consolidating balance sheet of the audited Financial Statements of Argosy Borrower and its Subsidiaries prepared on a as of the end of that fiscal year and related consolidated basis and, if available, consolidating statements of income, cash flows and stockholders’ equity for such 82 that fiscal year, (ii) a separate balance sheet of the Mortgage Subsidiary as of the end of that fiscal year and related statements of income, retained earnings, cash flows and stockholders’ equity for that fiscal year, in each case with accompanying notes and schedules, prepared in accordance with GAAP and audited by a firm of independent certified public accountants of recognized national standing selected by Borrower and acceptable to the Administrative Agent, (B) copies of the which accountants shall have issued an unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andaudit report thereon, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (Cb) certificates of such a letter signed by said accountants to the Administrative Agent stating effect that, during the course of their examination, nothing came to their attention which caused them to believe that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which or Event of Default has occurred and is continuingoccurred, or ifif they believe that any Default or Event of Default occurred, in specifying the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take facts with respect thereto;
(v) Within 90 days after the beginning of each fiscal year of Borrower, projections in reasonable detail and in form and substance satisfactory to Agent, on a quarterly basis, of (a) the assets, liabilities, cash flow and earnings of Borrower and its Subsidiaries for that fiscal year and the following fiscal year, and (b) compliance by Borrower with the financial covenants set forth in Article VII hereof for that fiscal year and the following fiscal year;
(vi) If requested by the Administrative Agent or any Lender, as As soon as available and available, but in no any event not later than five (5) Business Days three business days after they are sentreceipt thereof by any Borrower or Subsidiary, made available or filedall quarterly financial statements, copies of (A) all registration statements operating reports and reports filed by Argosy other financial and operating information regarding Investment Affiliates in which Borrower or any of its Subsidiaries with has made a net Investment of $10,000,000 or more and/or Real Estate owned by any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallysuch Investment Affiliate;
(vii) As soon as available, and but in any event not later than forty-five (45) 120 days after the commencement close of each fiscal year of Argosy, each Investment Affiliate a balance sheet of such Investment Affiliate as of the budget end of that fiscal year and projected financial related statements of the Loan Parties income, cash flow and stockholders’ equity for such that fiscal year, includingwith accompanying notes and schedules, prepared in each caseaccordance with GAAP and audited by a firm of independent certified public accountants, projected balance sheetswhich accountants have issued an unqualified report thereon, provided, however, that Borrower may furnish unaudited financial statements of income for any Investment Affiliate if the organizational and retained earnings governing agreements and instruments thereof (such as, without limitation, partnership, joint venture, shareholder and operating agreements) do not require annual audited financial statements of cash flow of the Loan Parties, all and no audited financial statements are in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreementfact prepared for such Investment Affiliate;
(viii) Not later than sixty (60) days after the end of each of the first three fiscal quarters, and not later than one-hundred and twenty (120) days after the end of the fiscal year, a compliance certificate in substantially the form of Exhibit H hereto signed by a Qualified Officer of Borrower confirming that Borrower is in compliance with all of the covenants of the Loan Documents, showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) and stating that no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof;
(a) As soon as possible and in no any event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) within 10 Business Days after the receipt thereof by Argosy or Borrower knows that any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority Reportable Event has occurred with respect to any Loan Party Plan, a statement, signed by a Qualified Officer of Borrower, describing said Reportable Event and within 20 days after such Reportable Event, a statement signed by such officer describing the action which Borrower proposes to take with respect thereto; and (b) within 10 Business Days of receipt, any notice from the Internal Revenue Service, PBGC or any Gaming Facility and promptly upon the request Department of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority Labor with respect to a Plan regarding any Gaming Facility;excise tax, proposed termination of a Plan, prohibited transaction or fiduciary violation under ERISA or the Code which could result in any liability to Borrower or any member of the Controlled Group in excess of $100,000; and (c) within 10 Business Days of filing, any Form 5500 filed by Borrower with respect to a Plan or any member of the Controlled Group which includes a qualified accountant’s opinion.
(x) As soon as possible and in no any event later than five within 10 days after receipt by Borrower, a copy of (5a) Business Days after any notice or claim to the receipt thereof effect that Borrower or any of its Subsidiaries or Special Investment Affiliates is or may be liable to any Person as a result of the release by Argosy such entity, or any of its Subsidiaries, a copy or any other Person of any noticetoxic or hazardous waste or substance into the environment, summons, citations or other written communications concerning and (b) any actual, alleged, suspected or threatened material notice alleging any violation of any Environmental Lawfederal, state or any material liability of Argosy local environmental, health or safety law or regulation by Borrower or any of its Subsidiaries for Environmental Damagesor Special Investment Affiliates, which, in either case, could be reasonably likely to have a Material Adverse Effect;
(xi) Promptly upon the furnishing thereof to the shareholders of Borrower, copies of all financial statements, reports, notices and proxy statements so furnished;
(xii) Promptly upon the distribution thereof to the press or the public, copies of all press release relating to material events;
(xiii) As soon as possible, and in any event within 10 days after Borrower knows of any fire or other casualty or any pending or threatened condemnation or eminent domain proceeding with respect to all or any material portion of any of the Real Estate, a statement signed by a Qualified Officer of Borrower, describing such fire, casualty or condemnation and the action Borrower intends to take with respect thereto; and
(xixiv) Such other instruments, agreements, certificates, opinions, statements, supplements to the foregoing documents and such other information relating to the operations or condition and reports (including non-financial or otherwiseinformation) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall Borrower will furnish to the Administrative Agent, with sufficient copies for each Lender, Lender and the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestFronting Bank:
(ia) As as soon as available and in no any event later than forty-five (45) within 120 days after the last day end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, retained earnings and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in a manner reasonably acceptable to the SEC by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 75 days after the end of each of the first three fiscal quarters of each fiscal year of Argosythe Borrower, a copy consolidated balance sheet of the Financial Statements of Argosy Borrower and its Consolidated Subsidiaries prepared on a consolidated basis for as of the end of such quarter and the related consolidated statements of income for such quarter, for the portion of the Borrower's fiscal year ended at the end of such quarter, and for the twelve months ended at the end of such quarter, and the related consolidated statement of cash flows for the portion of the Borrower's fiscal year ended at the end of such quarter, setting forth comparative figures for previous dates and periods to datethe extent required in Form 10-Q, all certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)) as to fairness of presentation, GAAP and consistency by a Financial Officer of the Borrower;
(iic) As soon as available and in no event later than one hundred, twenty (120) days after simultaneously with the close delivery of each fiscal year set of Argosyfinancial statements referred to in subsection (a) above, (A) copies a statement of the audited Financial Statements firm of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants that reported on such statements stating whether anything has come to their attention to cause them to believe that any Default or Event of recognized national standing acceptable to Default existed on the Administrative Agent, date of such statements;
(Bd) copies forthwith upon becoming aware of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge occurrence of any Default which has occurred and is continuing, or if, in the opinion Event of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of ArgosyDefault, a certificate of a Financial Officer of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets Borrower setting forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default thereof and the action which Argosy that the Borrower is taking or proposes to take with respect thereto;
(vie) If requested by promptly upon the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedfiling thereof, copies of each final prospectus (Aother than a prospectus included in any registration statement on Form S-8 or its equivalent or with respect to a dividend reinvestment plan) and all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all on Forms 10-QK, 10-K Q and 8-Q reports)K and similar reports that the Borrower shall have filed with the SEC, (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries Governmental Authority succeeding to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any all the functions of its Subsidiaries to the public generallySEC;
(viif) As soon as available, if and in when any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements member of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event Controlled Group (i) gives or is required to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior give notice to the acquisition by any Loan Party PBGC of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority Reportable Event with respect to any Loan Party Plan that might constitute grounds for a termination of such Plan under Title IV of ERISA, or any Gaming Facility and promptly upon knows that the request of the Administrative Agent or any Lender, copies plan administrator of any and all periodic Plan has given or special reports filed by is required to give notice of any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariessuch Reportable Event, a copy of any the notice of such Reportable Event given or required to be given to the PBGC; (ii) receives notice from a proper representative of a Multiemployer Plan of complete or partial Withdrawal Liability being imposed upon such member of the Controlled Group under Title IV of ERISA, a copy of such notice, summons, citations ; or other written communications concerning any actual, alleged, suspected or threatened material violation (iii) receives notice from the PBGC under Title IV of any Environmental LawERISA of an intent to terminate, or appoint a trustee to administer, any material liability Plan, a copy of Argosy or any of its Subsidiaries for Environmental Damagessuch notice; and
(xig) Such other instrumentspromptly, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time time, such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender or the Fronting Bank, may reasonably request. As promptly as practicable after delivering each set of financial statements as required in sub-subsection (a) of this Section 6.03, the Borrower shall make available a copy of the consolidating workpapers used by the Borrower in preparing such consolidated statements to the Fronting Bank and each Lender that shall have requested such consolidating workpapers. Each Lender and the Fronting Bank that receives such consolidating workpapers shall hold them in confidence as required by Section 9.16; provided that neither any Lender nor the Fronting Bank may disclose such consolidating workpapers to any other person pursuant to clause (iv) of Section 9.16.
Appears in 1 contract
Sources: Credit Agreement (Txu Corp /Tx/)
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 100 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders’ equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10-K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10-K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) As soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit C) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit C hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.6 and 6.7;
(vd) As soon as possible and in no event later than five (5) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and
(Ae) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of (i) the institution of any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any Reportable Event under material development in any Employee Benefit Plan such action, suit, proceeding, investigation or Multiemployer Plan, arbitration (B) any actual whether or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in not previously disclosed to the aggregateLenders), (C) any other event or condition which is which, in each case might reasonably likely be expected to have a Material Adverse Effect, or prompt notice thereof and such other information as may be reasonably available to it (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestevaluate such matters.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers Company shall furnish to the Administrative Agenteach ---------------------------------- Purchaser which, together with sufficient copies for each Lenderits Affiliates, the following, each in such form purchases and such detail as the Administrative Agent or the Required Lenders shall reasonably requestcontinues to own at least 100,000 Shares:
(ia) As soon as available and in no event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) within 90 days after the commencement end of each fiscal year of Argosythe Company, (i) an audited financial statement of the budget Company as of the end of such fiscal year; (ii) the related statements of income, stockholders' equity and projected cash flows for the fiscal year then ended, prepared in accordance with GAAP and certified by a firm of independent public accountants of recognized national standing selected by the board of directors of the Company and acceptable to a majority of the Purchasers (the "Annual Financial Statements"); and (iii) any related management letters from such accounting firm. The Annual Financial Statements shall be accompanied by a management report describing the state of the Company's business at year end.
(b) as soon as available, and in any event within 30 days after the end of each month in each fiscal year a balance sheet of the Company, and the related statement of income (with statements of stockholders' equity and cash flows to be provided quarterly), unaudited but prepared in accordance with GAAP (except that such unaudited financial statements need not contain all of the Loan Parties required footnotes and are subject to normal, recurring non-material year-end adjustments) and certified by the chief financial officer of the Company (the "Monthly Balance Sheet"). The Monthly Balance Sheet should be prepared as of the end of such month with statements of income, stockholders' equity and cash flows for such month and for the period from the beginning of the fiscal year to the end of such month, in each case with comparative statements for the prior fiscal year and the most recent 12-month budget delivered by the Company pursuant to Section 6.8(c) hereof;
(c) as soon as available and in any event no later than 30 days prior to the start of each fiscal year an annual business plan and capital and operating expense budget, cash flow projections and income and loss projections for the Company, in respect of such fiscal year, including, in each case, projected balance sheets, statements as approved by the board of income and retained earnings and statements of cash flow directors of the Loan Parties, Company and all itemized in reasonable detail and prepared on a quarterly basis, and, promptly after preparation, any revisions to any of the foregoing;
(d) any document relating to the affairs of the Company delivered to any shareholders of the Company; or
(e) prompt notice, and in any event within five days after notice has been received by the Company, of any material litigation or any adverse claims, dispute or any other developments which could reasonably be expected to include projected Capital Expenditures and quarterly projections be material to the operations, assets, or properties of the Borrowers' compliance with each of Company; provided, however, that the covenants set forth rights provided in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior Section 6.8 to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority Purchaser shall terminate with respect to any Loan Party or any Gaming Facility and promptly such Purchaser upon the request earlier of (a) a Public Offering or (b) when such Purchaser (or its Affiliates) owns less than fifty percent of the Administrative Agent or any LenderShares, copies (including the Common Stock issuable upon conversion thereof) purchased by such Purchaser at the Closing; and provided further that the rights provided in this Section 6.8 shall only be transferable to a transferee that acquires and continues to own at least 50% of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance Shares acquired by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestPurchaser hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (Purchasepro Com Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies Agent (for distribution to each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:):
(ia) As soon as available and in no event later than forty-five within ninety (4590) days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Company, or such earlier date on which the following is required to be filed with the Securities and Exchange Commission, a copy of the Financial Statements audited Consolidated balance sheet of Argosy the Company and its Subsidiaries prepared on a consolidated basis as of the end of such year and the related audited Consolidated statements of income, shareholders’ equity and cash flow for such quarter year, setting forth in comparative form the respective figures as of the end of and for the previous fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited and accompanied by a report thereon of independent certified public accountants of recognized national standing acceptable to selected by the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements Company and (C) certificates of such accountants satisfactory to the Administrative Agent stating and the Required Lenders (the “Auditor”), which report shall be unqualified; and which statements shall be prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis; provided that, the requirements of this Section 6.03(a) shall be deemed satisfied by delivery to each Lender within the time period specified above of an electronic copy of the Company’s Annual Report on Form 10-K for such fiscal year (together with the Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act) which includes the financial statements described in this Section 6.03(a) prepared in accordance with the requirements therefor and filed with the Securities and Exchange Commission;
(b) as soon as available, but in any event not later than 45 days after the end of each first, second and third fiscal quarter of the Company, a copy of the Consolidated balance sheet of the Company and its Subsidiaries as of the end of each such quarter and the related Consolidated interim statements of income, shareholders’ equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, prepared by management of the Company in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Financial Officer of the Company; provided that, the requirements of this Section 6.03(b) shall be deemed satisfied by delivery to each Lender within the time period specified above of an electronic copy of the Company’s Quarterly Report on Form 10-Q for such fiscal quarter, which includes the financial statements described in making this Section 6.03(b), prepared in compliance with the examination necessary for their opinion they have reviewed this Agreement requirements therefor and have obtained no knowledge filed with the Securities and Exchange Commission;
(c) a certificate prepared and signed by the Financial Officer with each delivery required by clauses (a) and (b), (i) certifying as to whether or not, as of any the close of such preceding period, a Default which or Event of Default has occurred and is continuingcontinuing and, if a Default or if, in the opinion Event of such accountants, a Default has occurred and is continuing, a statement specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) setting forth, as to of the nature thereofclose of such preceding period, reasonably detailed calculations demonstrating compliance of financial covenants and quantitative negative covenants;
(iiid) Contemporaneously with at all times indicated in clause (a) above a copy of the quarterly and year-end Financial Statements required management letter, if any, prepared by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03Auditor;
(ive) As soon as available and in no event later than forty-five (45) days promptly after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedfiling thereof, copies of (A) all registration statements regular and periodic financial information, proxy materials and other information and reports filed by Argosy which the Company or any of its Subsidiaries Guarantor shall file with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries shall send to its security holdersshareholders, provided that if such documents and information are available on or through the Company’s website, the Company may comply with this clause (Ce) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries delivering a notice to the public generallyLenders setting forth a written reference to such documents and information to be found on or through such website;
(viif) As promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in any materially adverse action to be taken by such agency;
(g) as soon as available, and but in any event not later more than forty-five thirty (4530) days after prior to the commencement end of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its SubsidiariesCompany, a copy of any noticethe plan and forecast (including a projected consolidated and consolidating balance sheet, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation income statement and funds flow statement) of any Environmental Law, or any material liability the Company for each fiscal quarter of Argosy or any of its Subsidiaries for Environmental Damagesthe upcoming fiscal year in form reasonably satisfactory to the Administrative Agent; and
(xih) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreements, certificates, opinions, statements, documents business affairs and information relating to the operations or condition (financial or otherwise) of Argosy the Company or its Subsidiariesthe Guarantors as any Lender may reasonably request. Notwithstanding anything to the contrary herein if, at any time, the Company shall create, establish or acquire any Subsidiary, all financial statements and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as information to be provided to the Administrative Agent and the Lenders pursuant to this Section 6.03 shall be prepared on a consolidated basis with respect to the Company and such Subsidiary or any Lender may from time to time reasonably requestSubsidiaries, as applicable.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Lessee and JFC will ---------------------------------- deliver to the Administrative Agent, Agent with sufficient copies for each LenderFunding Party, the following, each in such form and such detail as substance satisfactory to the Administrative Agent or and the Required Lenders shall reasonably requestLenders:
(i) As as soon as available and and, in no event later than forty-five (45) any case, within 90 days after the last day close of each fiscal year, two copies of the respective consolidated statements of financial condition of the Lessee and its Subsidiaries and JFC and its Subsidiaries setting forth the financial condition of such entities as of the end of such fiscal year, together with consolidated statements of income, cash flows, changes in partnership capital and changes in liabilities of the Lessee and JFC, respectively, for such fiscal year, in each case setting forth, in comparative form, the figures for the preceding fiscal year, all in reasonable detail, such financial statements to be accompanied by an opinion with respect thereto of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another Independent Certified Public Accountant, which opinion shall state that (x) the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (y) such financial statements present fairly the financial condition of the Lessee and its Subsidiaries and JFC and its Subsidiaries, respectively, at such date and the results of operations thereof for such period and have been prepared in accordance with generally accepted accounting principles consistently applied, except for noted changes in application in which such accountants concur;
(ii) as soon as practicable and, in any case, within 45 days after the end of each of the first three fiscal quarters of first, second and third quarterly accounting periods in each fiscal year year, two copies of Argosy, a copy (x) the respective unaudited consolidated statements of financial condition of the Financial Statements of Argosy Lessee and its Subsidiaries prepared on a and JFC and its Subsidiaries as of the end of such accounting period, and (y) the respective unaudited consolidated basis statements of income of the Lessee and its Subsidiaries and JFC and its Subsidiaries for such quarter the quarterly accounting period and for the fiscal year to date, setting forth in each case in comparative form the figures for the corresponding periods a year earlier, prepared and certified by the president or chief principal financial officer of Argosy to present fairly in all material respects the financial conditionLessee and JFC, results of operations respectively, as complete and other information reflected therein and to have correct, as having been prepared in accordance with GAAP (subject consistently applied and as presenting fairly such financial condition and results of operations, subject, in each case, to normal changes resulting from year-end audit adjustments);
(iiiii) As soon as available and in no event later than one hundredpromptly upon receipt thereof, twenty (120) days after the close two copies of each fiscal year of Argosyreport other than those referred to in paragraph (i) hereof (including, (Awithout limitation, the auditors' comment letter to management) copies of submitted to JFC, the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited Lessee or any Subsidiary by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuingannual, interim or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofspecial audit;
(iiiiv) Contemporaneously promptly upon distribution thereof, copies of all such financial or other statements (including proxy statements) and reports as JFC, the Lessee or any Subsidiary shall send to any class of its partners or shareholders, as the case may be, its bank lenders or holders of any issue of its debt securities;
(v) promptly after filing thereof, copies of all reports, proxy statements and registration statements that JFC, the Lessee or any Subsidiary shall file with any securities exchange or the SEC, or any governmental or public authority or agency substituted therefor, or any Business Association, including, without limitation, all Focus Reports (provided that such Focus Reports may be provided on a quarterly basis) and year-end Financial Statements required by all amendments to any of the foregoing clauses (i) filed by or with respect to the Lessee or any Subsidiary, and (ii)promptly after filing of any Form BD, a compliance certificate of the president Form ADV or chief CRD report or any amendment thereto that reflects any material disciplinary action, liability or change in financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuingposition, or, if any such Default has occurred and is continuing, a statement as to an Officer's Certificate specifying the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter Lessee is taking or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedpromptly upon receipt thereof, copies of (A) all registration statements and reports filed by Argosy notices received from United States, Canadian or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy other Permitted Nation or any of its Subsidiaries state, provincial or local governmental or public authorities or agencies or any Business Association relating to its security holdersany order, and (C) all press releases and ruling, statute, regulation or other similar public announcements concerning any material developments in law or directive that might materially adversely affect the financial condition or business of Argosy the Lessee or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallySubsidiary;
(vii) As soon as available, and in any event not later than forty-five (45) days immediately after the commencement of each fiscal year of Argosyoccurrence or institution thereof, the budget and projected financial statements of the Loan Parties for such fiscal yearan Officer's Certificate specifying any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.extent so
Appears in 1 contract
Sources: Master Agreement (Jones Financial Companies Lp LLP)
Financial Statements, Reports, etc. The Borrowers shall In the case of the Borrower, furnish to the Administrative Agent:
(a) within 90 days after the end of each fiscal year, (i) its unconsolidated and consolidated balance sheets and related statements of earnings and cash flow, showing the financial condition of the Borrower or the Borrower and the consolidated Subsidiaries, as the case may be, as of the close of such fiscal year and the results of its operations or of its operations and the operations of such Subsidiaries during such year, as the case may be, all audited by and accompanied by an opinion of Ernst & Young or other independent public accountants of recognized national standing to the effect that such financial statements fairly present the financial condition and results of operations of the Borrower or of the Borrower and the consolidated Subsidiaries on a consolidated basis, as the case may be, in accordance with sufficient copies GAAP consistently applied, (ii) a certificate of Ernst & Young or such other accounting firm opining on or certifying such statements (which certificate may be limited to accounting matters and disclaim responsibility for each Lenderlegal interpretations), (A) certifying that in the followingcourse of the regular audit of the business of the Borrower or the Borrower and its consolidated Subsidiaries, each as the case may be, such accounting firm has obtained no knowledge that an Event of Default or Default has occurred and is continuing or, if in the opinion of such form accounting firm an Event of Default or Default has occurred and such is continuing, specifying the nature and extent thereof and (B) setting forth computations in reasonable detail as satisfactory to the Administrative Agent or demonstrating compliance with the Required Lenders shall reasonably request:
covenants contained in Sections 6.12 through 6.17 and (iii) its consolidating schedules relating to the balance sheets and related statements of earnings delivered pursuant to clause (i) As soon as available and in no event later than forty-five above, certified by a Responsible Officer of the Borrower;
(45b) within 45 days after the last day end of each of the first three fiscal quarters of each fiscal year year, (i) its unconsolidated and consolidated balance sheets, related statements of Argosyearnings and cash flow, a copy and related consolidating schedules (other than with respect to cash flow) showing the financial condition of the Financial Statements Borrower or of Argosy the Borrower and the consolidated Subsidiaries, as the case may be, as of the close of such fiscal quarter and the results of its operations or its operations and the operations of such Subsidiaries, as the case may be, during such fiscal quarter and the then-elapsed portion of the fiscal year, all certified by one of its Responsible Officers as fairly presenting the financial condition and results of operations of the Borrower or the Borrower and the consolidated Subsidiaries prepared on a consolidated basis for such quarter and for basis, as the fiscal year to datecase may be, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments);
, and (ii) As soon as available and in no event later than one hundred, twenty (120) days after the close a certificate of each fiscal year of Argosya Responsible Officer opining on or certifying such statements, (A) copies certifying that no Event of the audited Financial Statements Default or Default has occurred and is continuing or, if such an Event of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (Default or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or ifproposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.12 through 6.16 (and stating that such computations have been reviewed by such accounting firm referred to in clause (a)(i) above);
(c) as soon as available and in any event within 90 days after the end of each fiscal year, (i) the Statement of Actuarial Opinion of each Insurance Subsidiary for such fiscal year and as filed with the Applicable Insurance Regulatory Authority and (ii) the Annual Statement of each Insurance Subsidiary for such fiscal year and as filed with the Applicable Insurance Regulatory Authority, together with, in the opinion case of the statements delivered pursuant to clause (ii) above, a certificate of a Responsible Officer of such accountantsInsurance Subsidiary or a Responsible Officer of the Borrower, as the case may be, to the effect that such statements present fairly the statutory assets, liabilities, capital and surplus, results of operations and cash flows of such Insurance Subsidiary in accordance with SAP;
(d) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, the Quarterly Statement of each Insurance Subsidiary for such fiscal quarter and as filed with the Applicable Insurance Regulatory Authority, certified by a Responsible Officer of the Borrower as fairly presenting the statutory assets, liabilities, capital and surplus, results of operations and cash flows of such Insurance Subsidiary;
(e) upon the request of the Required Lenders at any time that a Default has occurred and is continuing, a statement as but not more often than once in any fiscal year, an actuarial value report regarding actuarial valuations of Surplus and in force business of each Insurance Subsidiary, prepared by any independent actuarial or accounting firm of nationally recognized standing acceptable to the nature thereofRequired Lenders;
(iiif) Contemporaneously promptly after delivery to an Insurance Subsidiary, final copies of all regular and periodic reports of reviews or examinations of such Insurance Subsidiary, delivered to such Insurance Subsidiary by the Applicable Insurance Regulatory Authority;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it with the quarterly Securities and year-end Financial Statements required by Exchange Commission, or any Governmental Authority succeeding to any of or all the foregoing clauses (i) and (ii)functions of said Commission, a compliance certificate of the president or chief financial officer with any national securities exchange, or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuingdistributed to its shareholders, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(ivh) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any LenderAgent, a summary of the Reinsurance Agreements of the Insurance Subsidiaries as in effect on the date of such request, such summary to be substantially in the form of Exhibit G, and copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy Reinsurance Agreement of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesInsurance Subsidiary; and
(xii) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and financial condition of the Borrower or any Subsidiary, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents any Loan Document, as the Administrative Agent or any Lender may from time reasonably request (it being understood that any non-public information provided hereunder shall be kept confidential in accordance with sound banking practices and in any event subject to time reasonably requestSection 9.04(g)).
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, Lender the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each quarter (other than the last quarter of the first three Borrower's fiscal quarters of each fiscal year of Argosyyear), a copy copies of the Financial Statements of Argosy and its Subsidiaries the Loan Parties (prepared on a consolidated basis basis) and the balance sheets and statements of income of the Loan Parties (prepared on a consolidating basis) for such quarter (beginning with the quarter ending September 30, 2013 and thereafter) and for the fiscal year to date, each certified by the president president, chief executive officer, chief operating officer or chief financial officer of Argosy the Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), which Financial Statements and balance sheets and statements of income shall be accompanied by a narrative (as set forth in the related Form 10-Q) from management of the Borrower which discusses results;
(ii) As soon as available and in no event later than one hundred, twenty ninety (12090) days after the close of fiscal year 2013 and each fiscal year of Argosythereafter, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries the Loan Parties (prepared on a consolidated basis for such 82 yearbasis) and the balance sheets and statements of income of the Loan Parties (prepared on a consolidating basis), audited (as to the consolidated Financial Statements) by an independent certified public accountants of recognized national standing acceptable to the Administrative Agent, which Financial Statements shall be accompanied by a narrative (as set forth in the related Form 10-K) from management of the Borrower which discusses results and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that prepared in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofaccordance with GAAP;
(iii) Contemporaneously with the quarterly and year-end Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), a compliance certificate of the president president, chief executive officer, chief operating officer or chief financial officer or treasurer of Argosy the Borrower in substantially the form of Exhibit G (a "COMPLIANCE CERTIFICATE"“Compliance Certificate”) which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; , (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION Section 5.03, and (C) sets forth information and computations related to Sections 5.01(i), 5.02(a), 5.02(b), 5.02(d), 5.02(e) and 5.02(f) of this Agreement and any other provisions of the Credit Documents required to be included in such Compliance Certificate;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer PlanERISA Event, (B) any threatened (in writing) or actual or threatened litigation, suits, claims claims, disputes or disputes investigations against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate)) or in which injunctive relief or similar relief is sought, which relief, if granted, could have a Material Adverse Effect, (C) any other event or condition which is (including (I) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Guarantor, including pursuant to any applicable Environmental Laws) which, either individually or in the aggregate, could reasonably likely be expected to have a Material Adverse Effect, or ; (D) any DefaultDefault or any default under any Subordinated Obligations, the statement of a Responsible Officer of the president or chief financial officer or treasurer of Argosy Borrower setting forth details of such event, condition condition, default or Default and the action which Argosy the Borrower proposes to take with respect thereto, or (E) any material change in accounting policies of or financial reporting practices by the applicable Loan Party. Each notice pursuant to this Section 5.01(a)(iv) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(iv) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(viiv) As soon as available, and in any event not later than forty-five sixty (4560) days after the commencement of each fiscal year of Argosythe Borrower, the budget and projected financial statements of the Loan Parties (on a consolidated basis) for such fiscal yearyear (detailed on a quarterly basis) prepared on a basis consistent with historical financial statements, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan PartiesParties (on a consolidated basis), all in reasonable detail and with assumptions and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' Borrower's compliance with each of the covenants set forth in SECTION Section 5.03 of this Agreement;
(viiivi) As soon as possible and in no event later than five (5) Business Days prior to the occurrence of any event or circumstance that would require a prepayment pursuant to Section 2.06(c), the statement of the president, chief executive officer, chief operating officer or chief financial officer of the Borrower setting forth the details thereof;
(vii) As soon as possible and in no event later than ten (10) days prior to after such establishment, acquisition or issuance, written notice of the establishment or acquisition by any a Loan Party of any leasehold new Subsidiary or ownership interest in real property with a fair market value the issuance of $10,000,000 or more, a written supplement to SCHEDULE 4.01(hany new Equity Securities of any existing Loan Party (other than the Borrower);
(ixviii) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any a Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its SubsidiariesParty, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries a Loan Party for Environmental Damages;
(ix) As soon as possible and in no event later than ten (10) days after the acquisition by any Loan Party of any ownership interest in real property, a written supplement to Schedule 4.01(h);
(x) As soon as possible after the sending or filing thereof, copies of any financial statements, reports or non-standard proxy statements that the Borrower has made generally available to its shareholders; copies of any special reports or registration statements or prospectuses that Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases (excluding quarterly earnings press releases in the normal course) or other statements made available by the Borrower to the public concerning material changes to or developments in the business of such Borrower; and
(xi) Contemporaneously with the Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), the notices of security interest described in Section 4(a) of the Intellectual Property Security Agreement with respect to the period covered by such financial statements and the notices described in Section 4(h) and Section 4(k) of the Intellectual Property Security Agreement with respect to the period covered by such financial statements;
(xii) Contemporaneously with the Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), a written supplement to Schedule 4.01(h) with respect to any leasehold interest in real property acquired during the preceding period; and
(xiii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of Argosy or its Subsidiariesthe Loan Parties, and compliance by the Borrowers Borrower with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 5.01(a) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Borrower's behalf on SyndTrak Online or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents and the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (the “Borrower Materials”) by posting the Borrower Materials on one or more Platforms and (b) certain of the Lenders may be “public-side” Lenders (i.e. Lenders that do not wish to receive non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Borrower hereby agrees that if at any time the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all Borrower Material that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials “PUBLIC” the Borrower shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state security laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 8.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
Appears in 1 contract
Sources: Credit Agreement (Valueclick Inc/Ca)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and in no event later than forty-five (45) within 90 days after the last day end of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related consolidated statements of income and retained earnings and statements of cash flow of the Borrower and its consolidated Subsidiaries for such year, all complete and correct in all material respects and prepared in accordance with GAAP applied consistently throughout the periods involved, and reported on without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent certified public accountants of nationally recognized standing;
(b) not later than 60 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal year of Argosythe Borrower, a copy the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its consolidated Subsidiaries prepared on a as at the end of each such quarter and the related unaudited consolidated basis statements of income and retained earnings and statements of cash flow of the Borrower and its consolidated Subsidiaries for such quarter and for the portion of the fiscal year to datethrough such quarter, certified by the president a Responsible Officer as being, in his or chief financial officer of Argosy to present fairly her opinion, complete and correct in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP applied consistently throughout the periods involved (subject to normal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundred, twenty (120) days after concurrently with the close of each fiscal year of Argosy, (A) copies delivery of the audited financial statements referred to in clauses (a) and (b) above, a certificate of a Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies Officer of the unqualified opinions Borrower (or qualified opinions reasonably acceptable to the Administrative Agenti) andstating that, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates best of such accountants to officer's knowledge, the Administrative Agent stating Borrower during such period has performed each covenant and condition contained in the Loan Documents and that in making the examination necessary for their opinion they have reviewed this Agreement and have such officer has obtained no knowledge of any Default which has occurred or Event of Default hereunder, except as specifically indicated and is continuing(ii) showing in detail the calculations supporting such statement in respect of Sections 6.08, or if, in the opinion of such accountants, a Default has occurred 6.09 and is continuing, a statement as to the nature thereof6.10;
(iiid) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-within five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they same are sent, made available or copies of all proxy statements and reports which the Borrower sends to its stockholders, and within five days after the same are filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries which the Borrower shall file with any securities exchange or the United States Securities and Exchange Commission (including all or any successor on Form 10-K, Form 10-Q, 10Form 8-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagessuccessor form; and
(xie) Such promptly, such additional financial and other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Kuhlman Corp)
Financial Statements, Reports, etc. The Borrowers shall In the case of the Lead Borrower, furnish to the Administrative Agent, with sufficient copies for which shall furnish to each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(a) within the later of (i) As soon as available and in no event later than forty-five (45) 90 days after the last day end of each fiscal year or (ii) by the date the following statements would have been required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available under Rule 12b-25 of the Securities Exchange Act of 1934 for the filing of such statements), its statements of financial position, operations, shareholders’ equity and comprehensive income and cash flows showing the financial condition of the Lead Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by KPMG, LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Lead Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, together with a customary “management discussion and analysis” provision;
(b) within the later of (i) 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year of Argosy, a copy or (ii) by the date the following statements would have been required to be filed under the rules and regulations of the Financial Statements SEC, giving effect to any automatic extension available under Rule 12b-25 of Argosy the Securities Exchange Act of 1934 for the filing of such statements), its consolidated statements of financial position, operations and cash flows showing the financial condition of the Lead Borrower and its consolidated Subsidiaries prepared as of the close of such Fiscal Quarter and the results of its operations and the operations of such Subsidiaries during such Fiscal Quarter and the then elapsed portion of the fiscal year, and, other than with respect to quarterly reports during the remainder of the first fiscal year after the Closing Date, comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Lead Borrower and its consolidated Subsidiaries on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments), together with a customary “management discussion and analysis” provision;
(iic) As soon as available and in no event later than one hundredconcurrently with any delivery of financial statements under paragraph (a) or (b) above, twenty (120) days after a duly completed Officer’s Certificate signed by the close of each fiscal year of Argosychief executive officer, (A) copies chief financial officer, treasurer or controller of the audited Financial Statements of Argosy and its Subsidiaries prepared Lead Borrower certifying on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies behalf of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andLead Borrower that, to the extent deliveredsuch officer’s knowledge after due inquiry, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates no Default or Event of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuingcontinuing or, if any Default or if, in the opinion Event of such accountants, a Default has occurred and is continuing, specifying in reasonable detail the nature and extent thereof, which certificate shall (i) if delivered with the financial statements required by Section 5.04(a), set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Fiscal Year as well as the Applicable Excess Cash Flow Percentage, (ii) identify each Subsidiary of the Lead Borrower as a statement Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such certificate or a confirmation that there is no change in such information since the later of the Closing Date and the date of the last such certificate, (iii) identify each Immaterial Subsidiary as of the date of delivery of such certificate or confirmation that there is no change in such information since the dates of the Closing Date and the date of the last such certificate, (iv) set forth in reasonable detail (and the calculations required to establish) the Cumulative Retained Excess Cash Flow Amount and the Available ECF Amount as a result of any utilizations of such Cumulative Retained Excess Cash Flow Amount since the date of the last such certificate, and (v) with respect to any delivery of financial statements under paragraph (a) above only, certify that there have been no changes to the nature thereofschedules to the U.S. Security Agreement or the Canadian Security Agreement since the Closing Date or, if later, since the date of the most recent certificate pursuant to this Section 5.04(c), or if there have been any such changes, provide an updated and replacement schedule reflecting such changes;
(iiid) Contemporaneously with within 90 days after the quarterly and year-end Financial Statements required by beginning of each fiscal year of the foregoing clauses (i) and (ii)Lead Borrower, a compliance certificate detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred projected operations and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or cash flows as of the last day end of and for such quarter fiscal year and setting forth the assumptions used for purposes of preparing such budget);
(e) promptly after the same become publicly available, copies of, or year (links to copies of, all periodic and other reports, proxy statements and other materials filed by Super Holdco, Holdings, the Borrowers or any of their respective Restricted Subsidiaries with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed to its shareholders, as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(ivf) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days promptly after the receipt thereof by Argosy Holdings or the Borrowers or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiariestheir respective subsidiaries, a copy of any noticefinal “management letter” received by any such Person from its certified public accountants and the management’s response thereto;
(g) unless the Lead Borrower or Super Holdco has had an earnings call with respect to such quarterly financial statements, summonswithin 30 days after the date of delivery of the quarterly financial statements pursuant to Section 5.04(b) (or such later date agreed to by the Administrative Agent in its reasonable discretion), citations the Lead Borrower will hold a conference call or other written communications concerning any actualteleconference, allegedat a time selected by the Lead Borrower and reasonably acceptable to the Administrative Agent, suspected or threatened material violation with all of any Environmental Lawthe Lenders that choose to participate, or any material liability to review the financial results of Argosy or any the previous Fiscal Quarter and the financial condition of the Lead Borrower and its Subsidiaries and the budget for Environmental Damagesthe current fiscal year;
(h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and
(xii) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and financial condition of Holdings, certificates, opinions, statements, documents and information relating to the operations Borrowers or condition (financial or otherwise) any of Argosy or its the Borrowers’ respective Restricted Subsidiaries, and or compliance by the Borrowers with the terms of this Agreement and the other Credit Documents any Loan Document, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request. Notwithstanding the foregoing, (A) the obligations in paragraphs (a), (b) and (d) of this Section 5.04 may be satisfied by furnishing, at the option of the Lead Borrower, the applicable financial statements or, as applicable, forecasts or budget of any Parent Holding Company and its consolidated Subsidiaries, provided that to the extent such information relates to a Parent Holding Company, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Holding Company, on the one hand, and the information relating to the Lead Borrower and its Restricted Subsidiaries (on a standalone basis to such Parent Holding Company), on the other hand (it being understood that consolidating information consistent with the presentation in Note 19 to SB/RH Holdings, LLC’s financial statements included in its S-4 (registration statement 333-192634) shall be deemed to satisfy the foregoing requirement for consolidating information), and (B) (i) in the event that the Lead Borrower or any Parent Holding Company delivers to the Administrative Agent an Annual Report on Form 10-K for any fiscal year, as filed with the SEC or in such form as would have been suitable for filing with the SEC, within 90 days after the end of such fiscal year, such Form 10-K shall satisfy all requirements of paragraph (a) of this Section 5.04 with respect to such fiscal year to the extent that it contains the information and report and opinion required by such paragraph (a), after giving effect to clause (A) of this paragraph, and such report and opinion does not contain any “going concern” or like qualification, exception or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of audit (other than any such exception or explanatory paragraph, but not a qualification, expressly permitted to be contained therein under paragraph (a) of this Section 5.04) and (ii) in the event that the Lead Borrower or any Parent Holding Company delivers to the Administrative Agent a Quarterly Report on Form 10-Q for any fiscal quarter, as filed with the SEC or in such form as would have been suitable for filing with the SEC, within 45 days after the end of such fiscal quarter, such Form 10-Q shall satisfy all requirements of paragraph (b) of this Section 5.04 with respect to such fiscal quarter to the extent that it contains the information required by such paragraph (b), after giving effect to clause (A) of this paragraph; in each case to the extent that information contained in such Form 10-K or Form 10-Q satisfies the requirements of paragraphs (a) or (b) of this Section 5.04, after giving effect to clause (A) of this paragraph, as the case may be. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically and, if so delivered, shall be deemed to have been delivered to the Administrative Agent and the Lenders on the date on which (i) the Lead Borrower posts such documents, or provides a link thereto, on its principal publicly accessible website or (ii) such documents are posted on the Lead Borrower’s behalf on IntraLinks/IntraAgency, Syndtrak or another similar electronic system (the “Platform”); provided that the Lead Borrower shall notify the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions of such documents.
Appears in 1 contract
Sources: First Amendment and Restatement Agreement (Spectrum Brands, Inc.)
Financial Statements, Reports, etc. The Borrowers shall furnish Cause to be furnished to the Administrative AgentAgent (as Information subject to the applicable requirements of Section 9.17 herein, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:if any):
(a) (i) As soon as available and in no event later than forty-five (45) within 120 days after the last day end of each fiscal year, consolidated and consolidating, (A) a balance sheet, (B) a statement of income and (C) a statement of cash flow, each showing the financial condition of the first three Borrower and its Subsidiaries as of the close of such fiscal quarters year and the results of operations during such fiscal year, all the foregoing financial statements to be prepared in accordance with GAAP, audited by an accounting firm of nationally recognized standing with an unqualified opinion from such firm, and (ii) promptly when filed by the Borrower with the SEC, Borrower's Form 10-K for such fiscal year;
(b) within 60 days after the end of each fiscal quarter of each fiscal year of Argosythe Borrower or, a copy if earlier, when filed by the Borrower with the SEC, Borrower's Form 10-Q for such fiscal quarter together with consolidating (if applicable and if requested by the Administrative Agent) and fully consolidated company-prepared financial statements including, without limitation, consolidating (if applicable and if requested by the Administrative Agent) and fully consolidated balance sheets as of the Financial Statements end of Argosy that fiscal quarter, and its Subsidiaries prepared on a consolidating (if applicable and if requested by the Administrative Agent) and fully consolidated basis for such quarter and statements of income for the fiscal year to datequarter, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)by the Borrower;
(iic) As soon as available and in no event later than one hundred, twenty (120) days after the close of concurrently with each fiscal year of Argosy, (A) copies delivery of the audited Financial Statements of Argosy statements referred to in (a) and its Subsidiaries prepared on a consolidated basis for such 82 year(b) above, audited by independent certified public accountants of recognized national standing acceptable the Quarterly Certificate certifying that to the Administrative Agentbest of its, (B) copies his or her knowledge no Event of Default or Potential Default has occurred, or, if such an Event of Default or Potential Default has occurred, specifying the nature and extent thereof and accompanied by a statement of a Financial Officer of the unqualified opinions Borrower specifying any corrective action taken or proposed to be taken with respect thereto, and setting forth in reasonable detail in the form of Exhibit "F" the calculation of financial measures and ratios required to demonstrate compliance with the covenants, conditions and agreements contained in Section 5.11 hereof, all determined as of the end of the period covered by said statements;
(or qualified opinions reasonably acceptable d) within 10 days of their being filed, in addition to the Administrative Agent) and, to the extent delivered, management letters those delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants Borrower to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as pursuant to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (ia) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE"b) which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedabove, copies of all reports (Aother than preliminary proxy statements) all registration statements and reports filed by Argosy the Borrower with the SEC (or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect succeeding to any Loan Party or any Gaming Facility and promptly upon the request all of the Administrative Agent or any Lender, copies functions of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(xthe SEC) As soon as possible and in no event later than five (5) Business Days after under the receipt thereof by Argosy or any requirements of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Lawthe 1934 Act, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagessuccessor statute; and
(xie) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreements, certificates, opinions, statements, documents business affairs and information relating to financial condition of the operations or condition (financial or otherwise) of Argosy or Borrower and its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Subsidiaries as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall In the case of the Borrower, furnish to the Administrative Agent, with sufficient copies for Paying Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As as soon as available and in no any event later than forty-five (45) within 120 days after the last day end of each fiscal year, a consolidated balance sheet and related statement of income and retained earnings and cash flows showing the financial condition of each of (i) the Borrower and its subsidiaries and (ii) PTI and its subsidiaries as of the close of and during such fiscal year, in each case audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of (A) the Borrower and its subsidiaries and (B) PTI and its subsidiaries, as the case may be, on a consolidated basis in accordance with GAAP consistently applied (except as otherwise provided in the notes thereto);
(b) as soon as available and in any event within 120 days after the end of each fiscal year, an unaudited consolidating balance sheet and related statement of income for the Borrower and its subsidiaries for the four quarter period ending as of the close of such fiscal year;
(c) as soon as available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, in the case of ArgosyPFS, each fiscal quarter), a copy consolidated balance sheet and related statement of income and retained earnings and cash flows showing the financial condition of each of (i) the Borrower and its subsidiaries, (ii) PTI and its subsidiaries and (iii) PFS and its subsidiaries as of the close of and during such fiscal quarter and the then elapsed portion of the fiscal year, in each case certified by one of the Borrower's, PTI's or PFS's (as the case may be) Financial Statements Officers as fairly presenting the financial condition and results of Argosy operations of (A) the Borrower and its Subsidiaries prepared subsidiaries, (B) PTI and its subsidiaries and (C) PFS and its subsidiaries, as the case may be, on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP consistently applied (except for the absence of footnote disclosure), subject to normal year-end audit adjustments);
(iid) As soon as available and in no event later than one hundred, twenty concurrently with any delivery of financial statements under paragraph (120) days after the close of each fiscal year of Argosya), (Ab) copies or (c) above, (i) a certificate of the audited applicable accounting firm or Financial Statements Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that no Event of Argosy Default has occurred and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuingcontinuing or, if such an Event of Default has occurred or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to specifying the nature thereofand extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) a certificate of a Financial Officer of the Borrower setting forth the Net Termination Value as of the date of such financial statements;
(iiie) Contemporaneously promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the quarterly Securities and year-end Financial Statements required by the foregoing clauses (i) and (ii)Exchange Commission, a compliance certificate or any Governmental Authority succeeding to any or all of the president functions of said Commission, or chief financial officer with any national securities exchange, or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuingdistributed to its public shareholders, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be); and
(f) promptly, from time to time, such other information regarding the calculation operations, business affairs and financial condition of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent Borrower or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy Restricted Subsidiary or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Lawsubsidiaries, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents any Loan Document, as the Administrative Paying Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Pacificorp /Or/)
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, Lender the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each quarter (other than the last quarter of the first three Borrower’s fiscal quarters of each fiscal year of Argosyyear), a copy copies of the Financial Statements of Argosy and its Subsidiaries the Loan Parties (prepared on a consolidated basis basis) and the balance sheets and statements of income of the Loan Parties (prepared on a consolidating basis) for such quarter (beginning with the quarter ending March 31, 2009 and thereafter) and for the fiscal year to date, each certified by the president president, chief executive officer, chief operating officer or chief financial officer of Argosy the Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), which Financial Statements and balance sheets and statements of income shall be accompanied by a narrative (as set forth in the related Form 10-Q) from management of the Borrower which discusses results;
(ii) As soon as available and in no event later than one hundred, twenty ninety (12090) days after the close of fiscal year 2008 and each fiscal year of Argosythereafter, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries the Loan Parties (prepared on a consolidated basis for such 82 yearbasis) and the balance sheets and statements of income of the Loan Parties (prepared on a consolidating basis), audited (as to the consolidated Financial Statements) by an independent certified public accountants of recognized national standing acceptable to the Administrative Agent, which Financial Statements shall be accompanied by a narrative (as set forth in the related Form 10-K) from management of the Borrower which discusses results and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that prepared in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofaccordance with GAAP;
(iii) Contemporaneously with the quarterly and year-end Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), a compliance certificate of the president president, chief executive officer, chief operating officer or chief financial officer or treasurer of Argosy the Borrower in substantially the form of Exhibit H (a "COMPLIANCE CERTIFICATE"“Compliance Certificate”) which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; , (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION Section 5.03, and (C) sets forth information and computations related to Sections 5.01(i), 5.02(a), 5.02(b), 5.02(d), 5.02(e) and 5.02(f) of this Agreement and any other provisions of the Credit Documents required to be included in such Compliance Certificate;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer PlanERISA Event, (B) any threatened (in writing) or actual or threatened litigation, suits, claims claims, disputes or disputes investigations against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 2,000,000 or more (alone or in the aggregate)) or in which injunctive relief or similar relief is sought, which relief, if granted, could have a Material Adverse Effect, (C) any other event or condition which is (including (I) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Guarantor, including pursuant to any applicable Environmental Laws) which, either individually or in the aggregate, could reasonably likely be expected to have a Material Adverse Effect, or ; (D) any DefaultDefault or any default under any Subordinated Obligations, the statement of a Responsible Officer of the president or chief financial officer or treasurer of Argosy Borrower setting forth details of such event, condition condition, default or Default and the action which Argosy the Borrower proposes to take with respect thereto, or (E) any material change in accounting policies of or financial reporting practices by the applicable Loan Party. Each notice pursuant to this Section 5.01(a)(iv) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(iv) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(viiv) As soon as available, and in any event not later than forty-five thirty (4530) days after the commencement of each fiscal year of Argosythe Borrower, the budget and projected financial statements of the Loan Parties (on a consolidated basis) for such fiscal yearyear (detailed on a quarterly basis) prepared on a basis consistent with historical financial statements, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan PartiesParties (on a consolidated basis), all in reasonable detail and with assumptions and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' Borrower’s compliance with each of the covenants set forth in SECTION Section 5.03 of this Agreement;
(viiivi) As soon as possible and in no event later than five (5) Business Days prior to the occurrence of any event or circumstance that would require a prepayment pursuant to Section 2.06(c), the statement of the president, chief executive officer, chief operating officer or chief financial officer of the Borrower setting forth the details thereof;
(vii) As soon as possible and in no event later than ten (10) days prior to after such establishment, acquisition or issuance, written notice of the establishment or acquisition by any a Loan Party of any leasehold new Subsidiary or ownership interest in real property with a fair market value the issuance of $10,000,000 or more, a written supplement to SCHEDULE 4.01(hany new Equity Securities of any existing Loan Party (other than the Borrower);
(ixviii) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any a Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its SubsidiariesParty, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries a Loan Party for Environmental Damages;
(ix) As soon as possible and in no event later than ten (10) days after the acquisition by any Loan Party of any leasehold or ownership interest in real property, a written supplement to Schedule 4.01(h);
(x) As soon as possible after the sending or filing thereof, copies of any proxy statements, financial statements or reports that the Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by the Borrower to the public concerning material changes to or developments in the business of such Borrower; and
(xi) Contemporaneously with the Financial Statements for each quarter and each year end required by the foregoing clauses (i) and (ii), the notices of security interest described in Section 4(a) of the Intellectual Property Security Agreement with respect to the period covered by such financial statements and the notices described in Section 4(h) and Section 4(k) of the Intellectual Property Security Agreement with respect to the period covered by such financial statements;
(xii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of Argosy or its Subsidiariesthe Loan Parties, and compliance by the Borrowers Borrower with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 5.01(a) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Borrower’s behalf on IntraLinks or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents and the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (the “Borrower Materials”) by posting the Borrower Materials on one or more Platforms and (b) certain of the Lenders may be “public-side” Lenders (i.e. Lenders that do not wish to receive non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Borrower hereby agrees that if at any time the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all Borrower Material that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials “PUBLIC” the Borrower shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state security laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 8.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
Appears in 1 contract
Sources: Credit Agreement (Valueclick Inc/Ca)
Financial Statements, Reports, etc. The Borrowers Company shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestMajor Investor:
(ia) As soon as available and in no event later than forty-five (45) within 120 days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosy, the Company a copy consolidated balance sheet of the Financial Statements of Argosy Company and its Subsidiaries subsidiaries, if any, as of the end of such fiscal year and the related consolidated statements of income, stockholders' equity and cash flows for the fiscal year then ended, prepared on in accordance with generally accepted accounting principles and certified by a firm of independent public accountants of recognized national standing selected by the Board of Directors of the Company;
(b) within 45 days after the end of each quarter in each fiscal year a consolidated basis balance sheet of the Company and its subsidiaries, if any, and the related consolidated statements of income, stockholders' equity and cash flows, unaudited but prepared in accordance with generally accepted accounting principles and certified by the Chief Financial Officer of the Company, such consolidated balance sheet to be as of the end of such quarter, and such consolidated statements of income, stockholders' equity and cash flows to be for such quarter and for the period from the beginning of the fiscal year to datethe end of such quarter, certified by in each case with comparison to budget and comparative statements for the president or chief financial officer prior fiscal year;
(c) within 30 days after the end of Argosy to present fairly each month in all material respects each fiscal year a consolidated balance sheet of the financial conditionCompany and its subsidiaries, results if any, and the related consolidated statements of operations income, stockholders' equity and other information reflected therein and to have been cash flows, unaudited but prepared in accordance with GAAP (subject generally accepted accounting principles and certified by the Chief Financial Officer of the Company, such consolidated balance sheet to normal be as of the end of such quarter, and such consolidated statements of income, stockholders' equity and cash flows to be for such month and for the period from the beginning of the fiscal year to the end of such month, in each case with comparison to budget and comparative statements for the prior fiscal year-end audit adjustments);
(iid) As soon as available and in no event later than one hundred, twenty (120) days after at the close time of delivery of each fiscal year of Argosyannual financial statement pursuant to 3.1(a), (A) copies a certificate executed by the Chief Financial Officer of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent Company stating that in making the examination necessary for their opinion they have reviewed such officer has caused this Agreement and have obtained the terms of the Preferred Stock as set forth in the Articles to be reviewed and has no knowledge of any Default which has occurred and is continuing, or if, default by the Company in the opinion performance or observance of any of the provisions of this Agreement or the terms of the Preferred Stock as set forth in the Articles or, if such accountantsofficer has such knowledge, a Default has occurred specifying such default and is continuing, a statement as to the nature thereof;
(iiie) Contemporaneously with no later than 30 days prior to the quarterly start of each fiscal year, consolidated capital and operating expense budgets, cash flow projections and income and loss projections for the Company and its subsidiaries in respect of such fiscal year-end Financial Statements required by the foregoing clauses (i) , all itemized in reasonable detail and (ii)prepared on a monthly basis, a compliance certificate and, promptly after preparation, any revisions to any of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03foregoing;
(ivf) As soon as available and in no event later than forty-five (45) days promptly after the last day commencement thereof, but in any event within 10 days of each fiscal quarter receipt of Argosynotice thereof, a certificate notice of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigationall actions, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party claims, proceedings, investigations and inquiries of $10,000,000 or more (alone or the type described in Section 2.7 of the aggregate), (C) any other event or condition which is reasonably likely to Stock Purchase Agreement that could have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vig) If requested by the Administrative Agent or any Lenderpromptly, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time time, such other information regarding the business, financial condition, operations, property or affairs of the Company and its subsidiaries as such Major Investor reasonably may request. The Company's obligations under this 3.1 shall terminate upon the completion of a firm commitment underwritten public offering of the Company's Common Stock pursuant to an effective registration statement filed by the Company under the Securities Act (an "IPO").
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall In the case of the Borrower, furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and in no event later than forty-five within ninety (4590) days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Borrower (being December 31), a copy the audited, consolidated and consolidating balance sheets and statements of income, retained earnings, and cash flows, together with supporting schedules (which shall include, upon the reasonable request of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for Lender with respect to matters which it desires to review, the fiscal year working papers with respect to date, certified by the president or chief Borrower's financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(iistatements) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements Borrower, all in reasonable detail and accompanied by an unqualified opinion thereon by KPMG Peat Marwick or such other firm of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to selected by the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions Borrower and reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofLender;
(iiib) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and but in any event not later than forty-five (45) days after the commencement end of each of the first three (3) quarterly periods of each fiscal year of ArgosyBorrower, the budget management prepared unaudited, consolidated and projected consolidating financial statements of Borrower, including a balance sheet of Borrower as at the Loan Parties end of such fiscal quarter' related unaudited statements of income, retained earnings, and cash flows, all for the period from the beginning of such fiscal year to the end of such fiscal quarter, setting forth in each case corresponding figures for the like period of the preceding fiscal year; all in reasonable detail, prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved and with prior periods subject to normal year end audit adjustments, and certified by the Chief Financial Officer of Borrower;
(c) within thirty (30) days after the end of each month, an aging schedule of its Rights to Receive for such fiscal yearmonth (excluding Securitized Rights to Receive), including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event containing such information related to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this AgreementRights to Receive (excluding Securitized Rights to Receive) as Lender may request from time to time;
(viiid) As soon as possible and concurrently with the delivery of the items referred to in no event later than ten clauses (10a) days prior through (c) above, a certificate of the Chief Financial Officer of Borrower stating that, to the acquisition by any Loan Party best of any leasehold his knowledge, no condition or ownership interest in real property with event which would constitute a fair market value Default or Event of $10,000,000 Default has occurred, or moreif such a condition has occurred, a written supplement to SCHEDULE 4.01(h)the certificate shall specifically state such condition;
(ixe) As soon as possible and in no event later than five (5) Business Days promptly after the receipt thereof by Argosy same are sent or any of its Subsidiariesotherwise publicly available, copies of any all proxy statements, financial statements and all material notices and other material adverse communications from any Governmental Authority with respect reports which Borrower sends to any Loan Party or any Gaming Facility its stockholders, and promptly upon after the request of the Administrative Agent or any Lendersame are filed, copies of any all regular, periodic and special reports, (including, but not limited to, reports on Forms 10-K, 10-Q and 8-K), and all periodic registration statements which Borrower files with the Securities and Exchange Commission or special reports filed by any Loan Party governmental authority which may be substituted therefor, or with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;national securities exchange; and
(xf) As soon as possible promptly, from time to time, such other information regarding the operations, business, affairs, and in no event later than five (5) Business Days after financial condition of the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or Borrower and any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating as the Lender may reasonably request. All financial statements required to be furnished to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers Lender under this Section7.8 shall be prepared in accordance with generally accepted accounting principles applied on a basis consistent with the terms accounting practices of this Agreement and the other Credit Documents as Borrower reflected in its financial statements referred to in Section 6.3 hereof, or to the Administrative Agent or any Lender may from time to time reasonably requestextent such treatment has changed, with a reconciliation thereof.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish deliver or cause to be delivered to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and in no event not later than forty-five (45) 50 days after the last day end of each of the first three fiscal quarters of each fiscal year of Argosythe Borrower, a copy balance sheet and related statements of income and cash flows of the Financial Statements of Argosy Borrower and its the Subsidiaries prepared on a consolidated basis for such calendar quarter and for the period beginning on the first day of such fiscal year of the Borrower and ending on the last day of such quarter (in sufficient detail to dateindicate the Borrower's and each Subsidiary's compliance with the financial covenants set forth in Section 6.01), together with statements in comparative form for the corresponding date or period in the preceding fiscal year of the Borrower as summarized in the Form 10-Q of the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act for the corresponding period, and certified by the president or chief financial officer of Argosy to present a Financial Officer as presenting fairly in all material respects the financial condition, condition and results of operations of the Borrower and other information reflected therein and to have been prepared the Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments)adjustments and the absence of footnotes;
(iib) As soon as available and in no event not later than one hundred, twenty (120) 100 days after the close end of each fiscal year of Argosythe Borrower, financial statements (Aincluding a balance sheet, a statement of income, a statement of stockholders' equity and a statement of cash flows) copies of the audited Financial Statements of Argosy Borrower and its the Subsidiaries prepared on a consolidated basis as of the end of and for such 82 yearfiscal year (in sufficient detail to indicate the Borrower's and each Subsidiary's compliance with the financial covenants set forth in Section 6.01), audited together with statements in comparative form as of the end of and for the preceding fiscal year as summarized in the Form 10-K of the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act for the corresponding period, and accompanied by a report of Ernst & Young LLP or other independent certified public accountants of recognized national standing acceptable to the Administrative AgentAgent (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit), which opinion shall state in effect that such financial statements (A) were audited using generally accepted auditing standards, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants were prepared in connection accordance with all such Financial Statements GAAP consistently applied and (C) certificates present fairly the financial condition and results of such accountants operations of the Borrower and the Subsidiaries for the period covered;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, whether a Default has occurred and is continuingand, if a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuingoccurred, or, if any such Default has occurred and is continuing, a statement as to specifying the nature details thereof and what any action the Borrowers propose taken or proposed to take be taken with respect thereto; (Bii) sets forth, for setting forth reasonably detailed calculations demonstrating compliance with Section 6.01(a) and Section 6.01(b); and (iii) stating whether any change in GAAP or in the quarter or year covered by such Financial Statements or as application thereof has occurred since the date of the last day audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such quarter change on the financial statements accompanying such certificate;
(d) contemporaneously with the distribution thereof to the Borrower's or year (any Subsidiary's stockholders or partners or the filing thereof with the SEC, as the case may be), copies of all statements, reports, notices and filings distributed by the calculation Borrower or any Subsidiary to its stockholders or partners or filed with the SEC (including reports on Forms 10-K, 10-Q and 8-K) or any Governmental Authority succeeding to any or all of the financial ratios and tests provided in SECTION 5.03functions of the SEC or with any national securities exchange;
(ive) As soon as available and in no event later than forty-five (45) days promptly after the last day occurrence of each fiscal quarter any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of Argosythe Borrower, the Subsidiaries and all ERISA Affiliates in an aggregate amount exceeding $5,000,000, a certificate of a Financial Officer of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets Borrower setting forth the calculation of the Total Funded Debt details as to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable ERISA Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to that the Borrower, such Subsidiary or such ERISA Affiliate has taken or will take with respect thereto;
(vif) If requested promptly after the Borrower or any Subsidiary becomes aware of the commencement thereof, notice of any investigation, action, suit or proceeding before any Governmental Authority involving the condemnation or taking under the power of eminent domain of any material portion of its property or the revocation or suspension of any material permit, license, certificate of need or other governmental requirement applicable to any of its properties or assets;
(g) within 10 days of the receipt by the Administrative Agent Borrower or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedSubsidiary, copies of (A) all registration statements and material deficiency notices, compliance orders or adverse reports filed issued by Argosy any Governmental Authority or accreditation commission having jurisdiction over the licensing, accreditation or operation of any properties or assets of the Borrower or any Subsidiary or by any Governmental Authority or private insurance company pursuant to a provider agreement, which, if not timely complied with or cured, could result in the suspension or forfeiture of any license, certification or accreditation necessary in order for such Person to carry on its Subsidiaries with any securities exchange business as then conducted or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any termination of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy insurance or any of its Subsidiaries made reimbursement program available by Argosy or any of its Subsidiaries to the public generallysuch Person;
(viih) As soon as availablepromptly after Moody's or S&P shall have announced a change in the rati▇▇ ▇▇▇▇blished or deemed to have been established for the Index Debt, and in any event not later than forty-five (45) days after the commencement written notice of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagesrating change; and
(xii) Such promptly following the request therefor, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and financial condition of the Borrower or any Subsidiary, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Agreement, as the Administrative Agent or any Lender may from time to time reasonably request. Information required to be delivered pursuant to this Section 5.01 shall be deemed to have been delivered if such information, or one or more annual, quarterly or other reports containing such information, shall have been posted by the Borrower on an IntraLinks or similar site to which all of the Lenders have been granted access (and a confirming electronic correspondence is delivered to each Lender providing notice of such posting); provided that the Borrower shall deliver paper copies of such information to any Lender that requests such delivery.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
Financial Statements, Reports, etc. The Borrowers shall In the case of the Company, furnish to the Administrative Agent, with sufficient copies Agent for distribution to each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and in no event later than forty-five (45) within 120 days after the last day end of each fiscal year, its consolidated balance sheet and the related consolidated statements of income and cash flows showing its consolidated financial condition as of the close of such fiscal year and the consolidated results of its operations during such year, all audited by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or other independent certified public accountants of recognized national standing selected by the Company and accompanied by an opinion of such accountants to the effect that such consolidated financial statements fairly present its financial condition and results of operations on a consolidated basis in accordance with GAAP (it being agreed that the requirements of this paragraph may be satisfied by the delivery pursuant to paragraph (d) below of an annual report on Form 10-K containing the foregoing);
(b) within 90 days after the end of each of the first three fiscal quarters of each fiscal year year, its consolidated balance sheet and related consolidated statements of Argosy, a copy income and cash flow showing its consolidated financial condition as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Statements Officers as fairly presenting its financial condition and results of Argosy and its Subsidiaries prepared operations on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (GAAP, subject to normal year-end audit adjustmentsadjustments (it being agreed that the requirements of this paragraph may be satisfied 47 43 by the delivery pursuant to paragraph (d) below of a quarterly report on Form 10-Q containing the foregoing);
(iic) As soon as available and in no event later than one hundred, twenty concurrently with any delivery of financial statements under paragraph (120a) days after the close of each fiscal year of Argosy, or (Ab) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosyabove, a certificate of a Financial Officer certifying that, to the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as best of such date;
(v) As soon as possible and in Financial Officer's knowledge, no event later than five (5) Business Days after any officer Event of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and the extent thereof and any corrective action which Argosy proposes taken or proposed to take be taken with respect thereto;
(vid) If requested by promptly after the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedsame become publicly available, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Qon forms 10- K, 10-K Q and 8-Q reports)K filed by it with the SEC, (B) all reports, proxy statements and financial statements sent or made available by Argosy or any Governmental Authority succeeding to any of its Subsidiaries or all the functions of the SEC, or, in the case of the Company, copies of all reports distributed to its security holdersshareholders, and (C) all press releases and other similar public announcements concerning any material developments in as the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generallycase may be;
(viie) As soon promptly, from time to time, such other information as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the Lender shall reasonably request of through the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental DamagesAgent; and
(xif) Such other instrumentsconcurrently with any delivery of financial statements under paragraph (a) or (b) above, agreements, certificates, opinions, statements, documents and information relating calculations of the financial test referred to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestin Section 5.12.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Company shall furnish the following information to each Major Shareholder based upon the Administrative Agentunderstanding of such Major Shareholder that such information may be used solely for evaluating the Company, with sufficient copies for each Lenderand that it shall not be disclosed to any third party, the following, each except as provided in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestthis Agreement:
(i) As soon as available and in no event later than forty-five (45) within 90 days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosy, the Company a copy consolidated balance sheet of the Financial Statements of Argosy Company and its Subsidiaries Subsidiaries, if any, as of the end of such fiscal year and the related consolidated statements of income and cash flows for the fiscal year then ended, prepared on in accordance with generally accepted accounting principles consistently applied and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be certified by a firm of independent public accountants of recognized national standing selected by the Board, with the approval of the Company's stockholders;
(ii) within 30 days after the end of each calendar quarter in each fiscal year (other than the last month in each fiscal year) a consolidated basis balance sheet of the Company and its Subsidiaries, if any, and the related consolidated statements of income and cash flows, unaudited but prepared in accordance with generally accepted accounting principles and certified by the Chief Financial Officer of the Company, such consolidated balance sheet to be as of the end of such quarter and such consolidated statements of income and cash flows to be for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, in each case with such statements as requested by the Board;
(iii) (x) within 30 days after the beginning of each fiscal year an annual budget and operating plan for such fiscal year (and as soon as available, any subsequent revisions thereto); and (y) as soon as practicable after the end of each month, and in any event within 30 days thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and statement of cash flows of the Company for such month and for the current fiscal year to date, certified by the president or chief financial officer of Argosy including a comparison to present fairly in all material respects the financial conditionbudget and plan figures for such period, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject generally accepted accounting principles consistently applied, with the exception that no notes need be attached to normal such statements and year-end audit adjustments)adjustments need not have been made;
(iiiv) As soon as available and in no event later than one hundred, twenty (120) days after at the close time of delivery of each fiscal year of Argosyannual financial statement pursuant to Section 10(a)(ii), (A) copies a certificate executed by the Chief Financial Officer of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent Company stating that in making the examination necessary for their opinion they have reviewed such officer has caused this Agreement and have obtained the terms of the Series H, Series I and Series J Preferred to be reviewed and has no knowledge of any Default which has occurred and is continuing, or if, default by the Company in the opinion performance or observance of any of the provisions of this Agreement or the Series H, Series I and Series J Preferred or, if such accountantsofficer has such knowledge, a Default has occurred specifying such default and is continuing, a statement as to the nature thereof;
(iiiv) Contemporaneously with at the time of delivery of each quarterly and year-end Financial Statements required by the foregoing clauses (i) and (iistatement pursuant to Section 10(a)(ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred management narrative report explaining all significant variances from forecasts and is continuingall significant current developments in staffing, ormarketing, if any such Default has occurred sales and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect theretooperations;
(vi) If requested promptly following receipt by the Administrative Agent or any LenderCompany, as soon as available and in no event later than five (5) Business Days after they are senteach audit response letter, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases accountant's management letter and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries written report submitted to the Company by its independent public generally;
(vii) As soon as available, and accountants in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements connection with an annual or interim audit of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow books of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy Company or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xivii) Such other instrumentspromptly, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time time, such other information regarding the business, financial condition, operations, property or affairs of the Company and its Subsidiaries as such Major Shareholder reasonably may request.
Appears in 1 contract
Sources: Shareholders Agreement (Servicesoft Technologies Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(a) (i) As as soon as available and available, but in no any event later than forty-five (45) within 90 days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Co-Borrowers, a copy of the Financial Statements audited consolidated balance sheet of Argosy P&F and its Subsidiaries prepared on a as of the end of such year and the related audited consolidated basis statements of income, shareholders equity and cash flow for such quarter and year, setting forth in each case in comparative form the respective figures for the previous fiscal year to dateend, certified and accompanied by the president a report thereon of BDO ▇▇▇▇▇▇▇, LLP or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable selected by the Co-Borrowers and reasonably satisfactory to the Administrative AgentRequired Lenders (the “Auditor”), (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) report shall be unqualified; and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and but in any event not later than forty-five (45) within 90 days after the commencement end of each fiscal year of Argosy, the budget P&F and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of the management prepared consolidating financial statements of the Co-Borrowers setting forth in comparative form the respective figures for the previous fiscal year end and which support the financial statements delivered pursuant to clause (i), in each case of (i) and (ii) prepared in accordance with GAAP, applied on a consistent basis and with respect to the statements referred to in clause (ii) accompanied by a certificate to that effect executed by the Chief Financial Officer of P&F;
(b) as soon as available, but in any noticeevent not later than 60 days after the end of each quarterly period of each fiscal year of the Co-Borrowers, summonsa copy of the unaudited interim consolidated and consolidating balance sheet of P&F and its Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated and consolidating statements of income, citations shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, in each case prepared by the Chief Financial Officer of P&F in accordance with GAAP, applied on a consistent basis and accompanied by a certificate to that effect executed by the Chief Financial Officer of P&F;
(c) a certificate prepared and signed by the Chief Financial Officer of P&F with each delivery required by (a) and (b), as to whether or other written communications concerning any actualnot, allegedas of the close of such preceding period and at all times during such preceding period, suspected the Co-Borrowers were in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Auditor or threatened material violation Chief Financial Officer of P&F, as the case may be, shall have obtained knowledge of any Environmental Lawdefault in such compliance or notice of such default, it shall disclose in such certificate such default or any material liability defaults or notice thereof and the nature thereof, whether or not the same shall constitute an Event of Argosy Default hereunder;
(d) at all times indicated in (a) above, a copy of the management letter, if any, prepared by the Auditor;
(e) on or prior to the twenty-fifth (25th) day of each calendar month a detailed schedule of accounts receivable of the Co-Borrowers certified by the Chief Financial Officer of P&F and current as of the last Business Day of the preceding month, which schedule shall include accounts receivable agings on an invoice date basis, all in form satisfactory to the Required Lenders;
(f) on or prior to the twenty-fifth (25th) day of each calendar month a completed Borrowing Base Certificate executed by the Chief Financial Officer of P&F and current as of the last day of the immediately preceding month;
(g) promptly after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which P&F or any of its Subsidiaries for Environmental Damagesshall file with the Securities and Exchange Commission;
(h) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in any materially adverse action to be taken by such agency; and
(xii) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreementsbusiness affairs and condition, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) , of Argosy the Co-Borrowers, or its Subsidiariesany of them, and compliance by the Borrowers with the terms or any of this Agreement and the other Credit Documents their Subsidiaries as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Company shall furnish to the Administrative Agenteach Purchaser which, together with sufficient copies for each Lenderits Affiliates, the following, each in such form purchases and such detail as the Administrative Agent or the Required Lenders shall reasonably requestcontinues to own at least 285,714 Shares:
(ia) As soon as available and in no event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) within 90 days after the commencement end of each fiscal year of Argosythe Company, (i) a consolidated audited financial statement of the Company as of the end of such fiscal year; (ii) the related consolidated statements of income, stockholders' equity and cash flows for the fiscal year then ended, prepared in accordance with GAAP and certified by a firm of independent public accountants of recognized national standing selected by the board of directors of the Company and acceptable to a majority of the Purchasers (the "Annual Financial Statement"); and (iii) any related management letters from such accounting firm. The Audited Financial statements shall be accompanied by a management report describing the state of the Company's business at year end.
(b) as soon as available, and in any event within 30 days after the end of each month in each fiscal year a consolidated balance sheet of the Company, and the related consolidated statement of income (with statements of stockholders' equity and cash flows to be provided quarterly), unaudited but prepared in accordance with GAAP (except that such unaudited financial statement do not contain all of the required footnotes and are subject to normal, recurring non-material year-end adjustments) and certified by the chief financial officer of the Company (the "Monthly Balance Sheet"). The Monthly Balance Sheet should be prepared as of the end of such month with consolidated statements of income, stockholders' equity and cash flows for such month and for the period from the beginning of the fiscal year to the end of such month, in each case with comparative statements for the prior fiscal year and the most recent 12-month budget delivered by the Company pursuant to Section 6.8(c) hereof;
(c) as soon as available and in any event no later than 30 days prior to the start of each fiscal year (except for the budget with respect to 1998, which is due on January 1, 1998), an annual business plan and projected financial statements consolidated capital and operating expense budget, cash flow projections and income and loss projections for the Company, in respect of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements as approved by the board of income and retained earnings and statements of cash flow directors of the Loan Parties, Company and all itemized in reasonable detail and prepare on a quarterly basis, and, promptly after preparation, any revisions to any of the foregoing;
(d) any document relating to the affairs of the Company delivered to the shareholders of the Company; or
(e) prompt notice, and in any event within five days after notice has been received by the Company, of any material litigation or an adverse claims, dispute or any other developments which could reasonably be expected to include projected Capital Expenditures and quarterly projections be material to operations, assets, or properties of the Borrowers' compliance with each of Company. provided, however, that the covenants set forth rights provided in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior Section 6.8 to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority Purchaser shall terminate with respect to any Loan Party or any Gaming Facility and promptly such Purchaser (a) upon the request earlier of a Public Offering or (b) when such Purchaser (or its Affiliates) owns less than fifty percent of the Administrative Agent or any LenderShares, copies (including the Common Stock issuable thereto) purchased by such Purchaser at the Closing; and provided further that the rights provided in this Section 6.8 shall only be transferable to a transferee that acquires and continues to own at least 50% of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance Shares acquired by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestPurchaser hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (MGC Communications Inc)
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, Agents with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:,
(ia) As as soon as available and available, but in no any event later than forty-five (45) within 105 days after the last day of each of the first three fiscal quarters end of each fiscal year of ArgosyEDO, a copy the audited consolidated balance sheet of the Financial Statements of Argosy EDO and its Subsidiaries prepared on a as of the end of such year and the related audited consolidated basis statements of income, shareholders equity and cash flow for such quarter year, setting forth in comparative form the respective figures as of the end of and for the previous fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited and accompanied by a report thereon of independent certified public accountants of recognized national standing acceptable selected by EDO and reasonably satisfactory to the Administrative AgentRequired Lenders (the "Auditor"), which report shall be unqualified and prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis;
(Bi) copies as soon as available, but in any event not later than 60 days after the end of the unqualified opinions first, second and third fiscal quarters of EDO, the consolidated interim balance sheet of EDO and its Subsidiaries as of the end of each such quarter and the related interim statements of income, shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, prepared by EDO in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Chief Financial Officer of EDO:
(c) a certificate prepared and signed by the Chief Financial Officer with each delivery required by clauses (a) and (b) as to whether or qualified opinions reasonably acceptable to not, as of the Administrative Agent) andclose of such preceding period and all times during such preceding period, to the extent delivered, management letters delivered by such accountants Companies and the Guarantors were in connection compliance with all such the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Chief Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and Officer shall have obtained no knowledge of any Default which has occurred or Event of Default, it shall disclose in such certificate such Default or Event of Default and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iiid) Contemporaneously with at all times indicated in clauses (a) above a copy of the quarterly and year-end Financial Statements required management letter, if any, prepared by the foregoing clauses Auditor;
(ie) and (ii), a compliance certificate on or prior to the twentieth day of the president or chief financial officer or treasurer of Argosy (each calendar quarter a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as job status report" substantially in the form previously provided to the nature thereof Lenders certified by the Chief Financial Officer and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or current as of the last day of such quarter or year (as the case may be), the calculation Business Day of the financial ratios and tests provided in SECTION 5.03preceding calendar quarter;
(ivf) As soon as available promptly after filing thereof, copies of all regular and in no event later than forty-five (45) days after periodic financial information, proxy materials and other information and reports which any Company or any Guarantor shall file with the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such dateSecurities and Exchange Commission;
(vg) As soon as possible promptly after submission to any government or regulatory agency, all documents and in no event later information furnished to such government or regulatory agency other than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or such documents and information prepared in the aggregate), (C) normal course of business and which could not result in any other event or condition adverse action to be taken by such agency which is action could reasonably likely be expected to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vih) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than within ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any end of its Subsidiarieseach calendar quarter commencing with the quarter ending December 31, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, 2002 a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagescompleted Borrowing Base Certificate; and
(xii) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreements, certificates, opinions, statements, documents business affairs and information relating to the operations or condition (financial or otherwise) of Argosy the Companies or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Guarantors as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Edo Corp)
Financial Statements, Reports, etc. The Borrowers Company shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestInvestor:
(ia) As soon within ninety (90) days (or such shorter period of time as available shall be required by the SEC in connection with the filing of the Company’s quarterly reports with the SEC under the Exchange Act) after the end of each fiscal year of the Company ending on or after December 31, 2006, a balance sheet of the Company as of the end of such fiscal year and the related statements of income, stockholders’ equity and cash flows for the fiscal year then ended, prepared in no event later than accordance with GAAP and certified by a firm of independent public accountants;
(b) within forty-five (45) days (or such shorter period of time as shall be required by the SEC in connection with the filing of the Company’s annual reports with the SEC under the Exchange Act) after the last day of each of the first three fiscal quarters end of each fiscal quarter in each fiscal year of Argosy, a copy (other than the last fiscal quarter in each fiscal year) an unaudited balance sheet of the Company and the related unaudited statements of income, stockholders’ equity and cash flows, and certified by the Chief Financial Statements Officer of Argosy the Company, such balance sheet to be as of the end of such fiscal quarter and its Subsidiaries prepared on a consolidated basis such statements of income, stockholders’ equity and cash flows to be for such fiscal quarter and for the period from the beginning of the fiscal year to datethe end of such fiscal quarter, certified by in each case with comparative statements for the president or chief financial officer of Argosy to present fairly corresponding period in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal prior fiscal year-end audit adjustments);
(iic) As soon as available and in no event later than one hundred, twenty (120) days promptly after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required receipt by the foregoing clauses (i) and (ii)Company of notice thereof, a compliance certificate notice of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigationall actions, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate)claims, (C) any other event or condition which is reasonably likely to proceedings, investigations and inquiries that could have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xid) Such other instrumentspromptly, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time time, such other information regarding the business, financial condition, operations, property or affairs of the Company and its subsidiaries as the Investor may reasonably request.
Appears in 1 contract
Sources: Secured Convertible Note Purchase Agreement (GeoPharma, Inc.)
Financial Statements, Reports, etc. The Borrowers shall Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(i) as soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for the Borrower an unaudited consolidated balance sheet as of the close of each such period and the related unaudited consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, all certified by the Borrower's chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for the Borrower and its Subsidiaries, related reports in form and substance satisfactory to the Lenders, all certified by Borrower's chief financial officer or chief accounting officer, including a statement of Funds From Operations, a description of Unencumbered Assets, a listing of capital expenditures (in the level of detail as currently disclosed in Borrower's "Supplemental Information"), a report listing and describing all newly acquired Properties, including their cash flow, cost and secured or unsecured Indebtedness assumed in connection with such acquisition, if any, summary Property information for all Properties, including, without limitation, their Property Operating Income, occupancy rates, square footage, property type and date acquired or built, and such other information as may be requested to evaluate the quarterly compliance certificate delivered as provided below;
(iii) As soon as publicly available and but in no event later than the date such reports are to be filed with the Securities Exchange Commission, copies of all Form 10Ks, 10Qs, 8Ks, and any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information which the Borrower or any of its Subsidiaries files with the Securities Exchange Commission and to the extent any of such reports contains information required under the other subsections of this Section 8.2, the information need not be furnished separately under the other subsections;
(iv) As soon as available, but in any event not later than 90 days after the close of each fiscal year of the Borrower and its Subsidiaries, reports in form and substance satisfactory to the Lenders, certified by the Borrower's chief financial officer or chief accounting officer containing Property Operating Income for each individual Property included as Unencumbered Assets;
(v) Not later than forty-five (45) days after the last day end of each of the first three fiscal quarters of each fiscal year of Argosyquarters, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event not later than one hundred, twenty ninety (12090) days after the close of each fiscal year of Argosy, (A) copies end of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 fiscal year, audited a compliance certificate in substantially the form of Exhibit H hereto signed by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies Borrower's chief financial officer or chief accounting officer confirming that Borrower is in compliance with all of the unqualified opinions covenants of the Loan Documents, showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (or qualified opinions reasonably acceptable including such schedules and backup information as may be necessary to the Administrative Agentdemonstrate such compliance) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained to such officer's best knowledge, there is no knowledge other Default or Event of Default exists, or if any Default which has occurred and is continuingor Event of Default exists, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to stating the nature and status thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(va) As soon as possible and in no any event later than five (5) within 10 Business Days after any officer of any Loan Party the Borrower knows of the occurrence or existence of (A) that any Reportable Event under has occurred with respect to any Employee Benefit Plan or Multiemployer Plan, a statement, signed by the chief financial officer of Borrower, describing said Reportable Event and within 20 days after such Reportable Event, a statement signed by such chief financial officer describing the action which Borrower proposes to take with respect thereto; and (Bb) within 10 Business Days of receipt, any notice from the Internal Revenue Service, PBGC or Department of Labor with respect to a Plan regarding any excise tax, proposed termination of a Plan, prohibited transaction or fiduciary violation under ERISA or the Code which could result in any liability to Borrower or any member of the Controlled Group in excess of $100,000; and (c) within 10 Business Days of filing, any Form 5500 filed by Borrower with respect to a Plan, or any member of the Controlled Group which includes a qualified accountant's opinion.
(vii) As soon as possible and in any event within 30 days after receipt by the Borrower, a copy of (a) any actual notice or threatened litigationclaim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by such entity, suitsor any of its Subsidiaries, claims or disputes against any Loan Party involving potential monetary damages payable by other Person of any Loan Party of $10,000,000 toxic or more hazardous waste or substance into the environment, and (alone or in the aggregate), (Cb) any other event notice alleging any violation of any federal, state or condition which is local environmental, health orsafety law or regulation by the Borrower or any of its Subsidiaries or Investment Affiliates, which, in either case, could be reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior Promptly upon the furnishing thereof to the acquisition by any Loan Party shareholders of any leasehold or ownership interest in real property with a fair market value the Borrower, copies of $10,000,000 or moreall financial statements, a written supplement to SCHEDULE 4.01(h)reports and proxy statements so furnished;
(ix) As soon as possible and in no event later than five (5) Business Days after Promptly upon the receipt distribution thereof by Argosy to the press or any of its Subsidiariesthe public, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facilitypress releases;
(x) As soon as possible possible, and in no any event later than five (5) Business Days within 10 days after the receipt thereof by Argosy Borrower knows of any fire or other casualty or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected pending or threatened material violation of any Environmental Law, condemnation or eminent domain proceeding with respect to all or any material liability portion of Argosy any Unencumbered Asset, a statement signed by the Chief Financial Officer of Borrower, describing such fire, casualty or any of its Subsidiaries for Environmental Damagescondemnation and the action Borrower intends to take with respect thereto; and
(xi) Such other instrumentsinformation (including, agreementswithout limitation, certificates, opinions, statements, documents and information relating to the operations or condition (non-financial or otherwiseinformation) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (First Industrial Realty Trust Inc)
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish deliver or cause to be delivered to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and in no event not later than forty-five (45) 50 days after the last day end of each of the first three fiscal quarters of each fiscal year of Argosythe Borrower, a copy balance sheet and related statements of income and cash flows of the Financial Statements of Argosy Borrower and its the Subsidiaries prepared on a consolidated basis for such calendar quarter and for the period beginning on the first day of such fiscal year of the Borrower and ending on the last day of such quarter (in sufficient detail to dateindicate the Borrower's and each Subsidiary's compliance with the financial covenants set forth in Section 6.01), together with statements in comparative form for the corresponding date or period in the preceding fiscal year of the Borrower as summarized in the Form 10-Q of the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act for the corresponding period, and certified by the president or chief financial officer of Argosy to present a Financial Officer as presenting fairly in all material respects the financial condition, condition and results of operations of the Borrower and other information reflected therein and to have been prepared the Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments)adjustments and the absence of footnotes;
(iib) As soon as available and in no event not later than one hundred, twenty (120) 100 days after the close end of each fiscal year of Argosythe Borrower, financial statements (Aincluding a balance sheet, a statement of income, a statement of stockholders' equity and a statement of cash flows) copies of the audited Financial Statements of Argosy Borrower and its the Subsidiaries prepared on a consolidated basis as of the end of and for such 82 yearfiscal year (in sufficient detail to indicate the Borrower's and each Subsidiary's compliance with the financial covenants set forth in Section 6.01), audited together with statements in comparative form as of the end of and for the preceding fiscal year as summarized in the Form 10-K of the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act for the corresponding period, and accompanied by a report of Ernst & Young LLP or other independent certified public accountants of recognized national standing acceptable to the Administrative AgentAgent (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit), which opinion shall state in effect that such financial statements (A) were audited using generally accepted auditing standards, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants were prepared in connection accordance with all such Financial Statements GAAP consistently applied and (C) certificates present fairly the financial condition and results of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate operations of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, Subsidiaries for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03period covered;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(a) (i) As as soon as available and available, but in no any event later than forty-five (45) within 90 days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Companies, a copy of the Financial Statements audited consolidated balance sheet of Argosy the Companies as of the end of such year and its Subsidiaries prepared on a the related audited consolidated basis statements of income, shareholders equity and cash flow for such quarter year, setting forth in comparative form the respective figures as of the end of and for the previous fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited and accompanied by a report thereon of independent certified public accountants of recognized national standing acceptable selected by the Companies and satisfactory to the Administrative AgentLender (the "Auditor"), which report shall be unqualified; and (Bii) copies as soon as available, but in any event within 90 days after the end of each fiscal year of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsCompanies, a Default has occurred copy of the prepared consolidating financial statements of each Company for such fiscal year and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses in each case of (i) and (ii), prepared in accordance with Generally Accepted Accounting Principles, applied on a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred consistent basis, and is continuing, or, if any such Default has occurred and is continuing, a statement as with respect to the nature thereof and what action the Borrowers propose statements referred to take with respect thereto; in clause (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may beii), accompanied by a certificate to that effect executed by the calculation Chief Financial Officer of the financial ratios and tests provided in SECTION 5.03each Company;
(ivi) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and but in any event not later than forty-five 60 days after the end of each first, second and third fiscal quarters of the Companies, a copy of the consolidated and consolidating interim balance sheet of the Companies as of the end of each such quarter and the related interim consolidated and consolidating statements of income, shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, prepared by management of the Companies in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Chief Financial Officer of each Company;
(45c) a certificate prepared and signed by the Auditor with each delivery required by 6.03
(a) and a certificate prepared and signed by the Chief Financial Officer with each delivery required by 6.03(b) as to whether or not, as of the close of such preceding period and at all times during such preceding period, the Companies were in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Auditor or a Chief Financial Officer, as the case may be, shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the nature thereof, whether or not the same shall constitute a Default or an Event of Default hereunder;
(d) at all times indicated in clauses (a) and (b) above a copy of the management letter, if any, prepared by the Auditor;
(e) if applicable, promptly after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which any Company or any Guarantor shall file with the Securities and Exchange Commission;
(f) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in any adverse action to be taken by such agency;
(g) within fifteen (15) days after the commencement end of each fiscal year month, (i) a completed Borrowing Base Certificate, (ii) a detailed accounts receivable aging report by date of Argosyinvoice, and (iii) a report detailing the budget and projected financial statements status of the Loan Parties for such fiscal year, includingCompanies' contracts, in each case, projected balance sheets, statements of income in form and retained earnings and statements of cash flow of substance satisfactory to the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;Lender.
(viiih) As soon as possible promptly, from time to time, such other information regarding the operations, business affairs and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy the Companies or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents Guarantors as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Except as expressly set forth in Section 6.1(b) below, the Borrower shall furnish to the Administrative Agent, with sufficient copies for each Lender, Agent the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five Within fifty (4550) days after the last day of each fiscal quarter of the first three fiscal quarters of each fiscal year of ArgosyBorrower, (A) a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis the Borrower for such quarter and for the fiscal year to datedate (including consolidated Financial Statements for the Borrower and its Subsidiaries), certified by the president or chief financial officer of Argosy the Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments), and (B) the Form 10-Q Report filed by the Borrower with the Securities and Exchange Commission for such quarter;
(ii) As soon as available and in no event later than one hundred, twenty Within ninety-five (12095) days after the close of each fiscal year of Argosythe Borrower, (A) copies of the audited Financial Statements of Argosy the Borrower for such year (including consolidated Financial Statements for the Borrower and its Subsidiaries Subsidiaries), prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative AgentLenders, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative AgentLenders) and, to the extent delivered, and management letters delivered by such accountants in connection with all such Financial Statements and Statements, (C) certificates of all such accountants to the Administrative Agent Lenders stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Event of Default or Default which has occurred and is continuing, or if, in the opinion of such accountants, a an Event of Default or Default has occurred and is continuing, a statement as to the nature thereofthereof (or other certificates of such accountants reasonably acceptable to the Lenders), and (D) the Form 10-K Report filed by the Borrower with the Securities and Exchange Commission for such year;
(iii) Contemporaneously with the quarterly and year-end Financial Statements financial statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE"the Borrower in substantially the form of Exhibit 6.1(a) hereto, in such detail as the Agent may reasonably request which sets forth the calculations conducted to verify that the Borrower is in compliance with (A) states the net worth covenant set forth in Section 6.2(g) and (B) the limitations on Indebtedness set forth in Sections 6.2 (a) and 6.2(h), stating that no Event of Default and no Default has occurred and is continuing, or, if any such Event of Default or Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence registration statement, annual quarterly or existence of (A) any Reportable Event under any Employee Benefit Plan other report, proxy or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which financial statement is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including notification to the Agent that such items are available on ▇▇▇▇▇, and copies of and all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements reports and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries Borrower to the public generallyholders of Senior Indebtedness;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiariesthe Borrower, and compliance by the Borrowers Borrower with the terms of this Agreement and the other Credit Transaction Documents as the Administrative Agent or any Lender may from time to time reasonably request; and
(vi) Notwithstanding any provision to the contrary contained in this Agreement, Borrower shall deliver to the Agent, for distribution to the Lenders, true, correct and complete copies of the items described in Section 6.1(a)(ii) hereof, (1) for the fiscal year ended December 31, 2006, on or prior to December 31, 2008, (2) for the fiscal year ended December 31, 2007, on or prior to March 31, 2009, and (3) for the fiscal year ended December 31, 2008, on or prior to June 30, 2009.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 90 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) Commencing with the quarter ending June 30, 1997 and as soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit D) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit D hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.7 and 6.8;
(vd) As soon as possible Promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available by the Borrower or any of its Subsidiaries to its shareholders generally, of all regular and periodic reports and all registration statements and prospectuses, if any, filed by any of them with any securities exchange or with the Securities and Exchange Commission, or any comparable foreign bodies, and of all press releases and other statements made available generally by any of them to the public concerning material developments in no event later than five the business of the Borrower or any of its Subsidiaries;
(5e) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or existence Event of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement a certificate of the president or president, chief financial officer or treasurer chief accounting officer of Argosy setting forth details the Borrower specifying the nature and period of existence of such event, condition Default or Event of Default and what action the action which Argosy Borrower has taken, is taking and proposes to take with respect thereto;
(vif) If requested by Promptly upon any executive officer of the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy Borrower or any of its Subsidiaries with obtaining knowledge of (i) the institution of any securities exchange action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy Borrower or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy their assets, or (ii) any of its Subsidiaries material development in any such action, suit, proceeding, investigation or arbitration (whether or not previously disclosed to the public generally;Lenders), which, in each case might reasonably be expected to have a Material Adverse Effect, prompt notice thereof and such other information as may be reasonably available to it (without waiver of any applicable evidentiary privilege) to enable the Lenders to evaluate such matters; and
(viig) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestPro Forma Balance Sheet.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers Except as set forth below, so long as any Purchaser shall hold not less than 25% of Purchaser Shares issued to such Purchaser under this Agreement, the Company shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestPurchaser:
(ia) As as soon as available and practicable and, in no event later than fortyany case, within ninety-five (4595) days after the last day end of each fiscal year, consolidated and consolidating financial statements of the Company, consisting of the balance sheet of the Company as of the end of such fiscal year and the statements of operations, changes in shareholders' equity and cash flows of the Company for such fiscal year, setting forth in each case, in comparative form, the figures for the preceding fiscal year, all in reasonable detail and fairly presented in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods reflected therein, except as stated therein, and accompanied by an opinion thereon of independent certified public accountants selected by the Company of good and recognized national standing in the United States and reasonably acceptable to the Purchasers holding a majority of the Purchaser Shares issued under this Agreement, which opinion shall provide that (1) the audit of such financial statements has been conducted in accordance with generally accepted auditing standards and, accordingly, included examining, on a test basis, evidence supporting amounts and disclosures in the financial statements and (2) such financial statements present fairly, in all material respects, the financial position of the Company and its subsidiaries taken as a whole at such date and the results of operations and cash flows thereof for such period and have been prepared in conformity with generally accepted accounting principles and subject to qualifications noted therein;
(b) as soon as practicable and, in any case, within fifty (50) days after the end of each of the first three fiscal quarters in each fiscal year, unaudited consolidated and consolidating financial statements of the Company setting forth the balance sheet of the Company at the end of each such fiscal year quarter and the statements of Argosyoperations, a copy shareholders' equity and changes in cash flows of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis Company for each such fiscal quarter and for the fiscal year to date, and setting forth in comparative form figures as of the corresponding date and for the corresponding periods of the preceding fiscal year, all in reasonable detail and certified by the president or chief principal financial officer of Argosy to present fairly in all material respects the financial conditionCompany as complete and correct, results of operations and other information reflected therein and to have as having been prepared in accordance with GAAP generally accepted accounting principles consistently applied (except as otherwise disclosed therein) and as presenting fairly, in all material respects, the financial position of the Company and its subsidiaries and results of operations, shareholders' equity and cash flows thereof subject, in each case, to changes resulting from normal year-end adjustments consisting only of normal recurring accruals and to the absence of footnotes;
(c) as soon as available, but in any event within thirty (30) days after the end of each calendar month, copies of the unaudited consolidated and consolidating balance sheet of the Company as at the end of such calendar month and the related unaudited consolidated and consolidating statements of operations, shareholders' equity and cash flows for such calendar month and the portion of the calendar year through such calendar year, in each case setting forth in comparative form the figures for the corresponding periods of the previous calendar year, prepared in reasonable detail and in accordance with generally accepted accounting principles applied consistently throughout the periods reflected therein (except as otherwise disclosed therein) and certified by the principal financial officer of the Company as presenting fairly the financial condition and results of operations of the Company and its subsidiaries (subject to normal year-end audit adjustmentsadjustments consisting only of normal recurring accruals and to the absence of footnotes);
(iid) As soon as available and in no event later than one hundred, twenty (120) within 30 days after the close beginning of each fiscal year of Argosythe Company (and with respect to any revision thereof, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for promptly after such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which revision has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (iibeen prepared), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, proposed annual operating budget for the quarter or Company and its subsidiaries, including projected monthly consolidated and consolidating income and cash flow statements during such fiscal year covered by such Financial Statements or and projected consolidating balance sheets as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day end of each fiscal quarter of Argosy, a certificate and as of the chief financial officer or treasurer end of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, includingand each monthly financial statement furnished pursuant to (c) above shall reflect variances from such operating budget, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender same may from time to time reasonably requestbe revised; and
(e) promptly after filing, copies of all registration statements, prospectuses, periodic reports and other documents filed by the Company or any of its subsidiaries with the Commission.
Appears in 1 contract
Sources: Subscription and Exchange Agreement (Acreedo Health Inc)
Financial Statements, Reports, etc. The Borrowers shall Borrower will furnish to the Administrative Agent, with sufficient copies Paying Agent for each Lender, distribution to the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(a) promptly after the filing or sending thereof and in any event not later than (i) As soon as available and in no event later than forty-five (45) 105 days after the last day end of each fiscal year, a copy of the Borrower's report on Form 10-K which the Borrower files with the SEC for such year and (ii) 15 days after being sent to its public security holders, a copy of the Borrower's annual report;
(b) promptly after the filing thereof, and in any event within 60 days after the end of each of the first three fiscal quarters of during each fiscal year of Argosyyear, a copy of the Financial Statements of Argosy and its Subsidiaries prepared Borrower's report on a consolidated basis Form 10-Q which the Borrower files with the SEC for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)quarter;
(iic) As soon as available and in no event later than one hundredconcurrently with any delivery under paragraph (a) or (b) above, twenty (120) days after the close balance sheet of each FIN 46 Subsidiary as of the end of such fiscal year or quarter, respectively, and the statements of Argosyincome and cash flows of each FIN 46 Subsidiary for such period, as applicable.
(d) concurrently with any delivery under paragraph (a) or (b) above, (i) a certificate of a Financial Officer (A) copies certifying that no Event of Default or Default has occurred, or, if such an Event of Default or Default has occurred, specifying the audited Financial Statements of Argosy nature and its Subsidiaries prepared on a consolidated basis for such 82 yearextent thereof and any corrective action taken or proposed to be taken with respect thereto, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, and (B) copies setting forth computations demonstrating that the Borrower is in compliance with Sections 6.01, 6.02 and 6.03 (and showing the adjustments required to be made to financial statement items relevant to such computations or a result of the unqualified opinions (or qualified opinions reasonably acceptable to exclusion therefrom of the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (iFIN 46 Subsidiaries) and (ii)) a certificate signed by a Financial Officer in the form of Exhibit 5.02 setting forth as of such date the information required therein;
(e) promptly after the same become publicly available, a compliance certificate copies of all other reports filed by it with the SEC, or any Governmental Authority succeeding to any of or all the functions of the president SEC, or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuingdistributed to its shareholders, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xif) Such other instrumentspromptly after the same become publicly available, agreements, certificates, opinions, statements, documents and information relating notice that either or both of the ratings in respect of the Index Debt or the Short-Term Debt have changed from the immediately preceding ratings previously reported to the operations or condition Paying Agent by the Borrower; Reports required to be delivered pursuant to subsections (financial or otherwisea), (b) and (d) of Argosy this Section 5.02 shall be deemed to have been delivered on the date on which the Borrower posts such reports on the Borrower's website on the Internet at the website address listed on the signature pages hereof or its Subsidiarieswhen such report is posted on the SEC's website at www.sec.gov; provided that the Borrower shall deliver paper copies o▇ ▇▇▇ ▇▇▇▇▇ts referred to in subsections (a), (b), (c) and compliance by the Borrowers with the terms (d) of this Agreement and the other Credit Documents as the Administrative Section 5.02 to any Agent or any Lender may from who requests the Borrower to deliver such paper copies until written notice to cease delivering paper copies is given by such Agent or such Lender; provided further, that in every instance the Borrower shall provide paper copies of the certificate required by subsection (d) and the notice required by subsection (f) to the Paying Agent and each of the Lenders until such time to time reasonably requestas the Paying Agent shall provide the Borrower written notice otherwise.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)
Financial Statements, Reports, etc. The Borrowers shall In the case of the Company, furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestBank:
(ia) As soon as available and in no event later than forty-five (45) within 90 days after the last day end of each fiscal year, its Consolidated statement of financial position and related Consolidated statements of earnings, cash flows and shareholders' investment, showing the financial position of the Company and its Consolidated Subsidiaries as of the close of such fiscal year and their results of operations and cash flows for such year, all audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public accountants of recognized national standing acceptable to the Required Banks and accompanied by an opinion of such accountants (which shall not be qualified in any material respect except with the consent of the Required Banks) to the effect that such Consolidated financial statements fairly present the financial position, results of operations and cash flows of the Company on a Consolidated basis in accordance with GAAP consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year year, its Consolidated statement of Argosy, a copy financial position and related Consolidated statements of earnings and cash flows showing the financial position of the Financial Statements of Argosy Company and its Consolidated Subsidiaries prepared on a consolidated basis as of the close of such fiscal quarter and their results of operations for such fiscal quarter and for the then elapsed portion of the fiscal year to dateand their cash flows for the then elapsed portion of the fiscal year, all certified by the president or chief financial officer one of Argosy to present its Financial Officers as fairly in all material respects presenting the financial conditionposition, results of operations and other information reflected therein and to have been prepared cash flows of the Company on a Consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments);
; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or Financial Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) As soon as available setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the covenants contained in Sections 6.06 and in no event later than one hundred, twenty 6.07; (120d) days promptly after the close occurrence of each fiscal year of Argosyany event or condition which makes the information thereon inaccurate, incomplete or untrue, an update to Schedule 3.8; (Ae) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it with the audited Financial Statements Securities and Exchange Commission, or any governmental authority succeeding to any of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to or all the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates functions of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuingCommission, or ifwith any national securities exchange, in the opinion of such accountantsor distributed to its shareholders, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be); and (f) promptly, from time to time, such other information regarding the calculation operations, business affairs and financial condition of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer Company or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse EffectSubsidiary, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents any Loan Document, as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies Agent (for distribution to each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:):
(ia) As soon as available and in no event later than forty-five within ninety (4590) days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Company, or such earlier date on which the following is required to be filed with the Securities and Exchange Commission, a copy of the Financial Statements audited Consolidated balance sheet of Argosy the Company and its Subsidiaries prepared on a consolidated basis as of the end of such year and the related audited Consolidated statements of income, shareholders’ equity and cash flow for such quarter year, setting forth in comparative form the respective figures as of the end of and for the previous fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited and accompanied by a report thereon of independent certified public accountants of recognized national standing acceptable to selected by the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements Company and (C) certificates of such accountants satisfactory to the Administrative Agent stating and the Required Lenders (the “Auditor”), which report shall be unqualified; and which statements shall be prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis; provided that, the requirements of this Section 6.03(a) shall be deemed satisfied by delivery to each Lender within the time period specified above of an electronic copy of the Company’s Annual Report on Form 10-K for such fiscal year (together with the Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act) which includes the financial statements described in this Section 6.03(a) prepared in accordance with the requirements therefor and filed with the Securities and Exchange Commission;
(b) as soon as available, but in any event not later than 45 days after the end of each first, second and third fiscal quarter of the Company, a copy of the Consolidated balance sheet of the Company and its Subsidiaries as of the end of each such quarter and the related Consolidated interim statements of income, shareholders’ equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, prepared by management of the Company in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Financial Officer of the Company; provided that, the requirements of this Section 6.03(b) shall be deemed satisfied by delivery to each Lender within the time period specified above of an electronic copy of the Company’s Quarterly Report on Form 10-Q for such fiscal quarter, which includes the financial statements described in making this Section 6.03(b), prepared in compliance with the examination necessary for their opinion they have reviewed this Agreement requirements therefor and have obtained no knowledge filed with the Securities and Exchange Commission;
(c) a certificate prepared and signed by the Financial Officer with each delivery required by clauses (a) and (b), (i) certifying as to whether or not, as of any the close of such preceding period, a Default which or Event of Default has occurred and is continuingcontinuing and, if a Default or if, in the opinion Event of such accountants, a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) setting forth, as of the close of such preceding period, reasonably detailed calculations demonstrating compliance of financial covenants and quantitative negative covenants;
(d) as soon as available in any event not later than 20 days after the end of each fiscal month of the Company, a statement copy of the Consolidated balance sheet of the Company and its Subsidiaries as of the end of each such month and the related Consolidated interim statements of income, shareholders’ equity and cash flow for such month and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, prepared by management of the Company in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Financial Officer of the Company;
(e) at all times indicated in clause (a) above a copy of the management letter, if any, prepared by the Auditor;
(f) promptly after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which the Company or any Guarantor shall file with the Securities and Exchange Commission or shall send to its shareholders, provided that if such documents and information are available on or through the Company’s website, the Company may comply with this clause (f) by delivering a notice to the nature thereofLenders setting forth a written reference to such documents and information to be found on or through such website;
(g) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in any materially adverse action to be taken by such agency;
(h) as soon as available, but in any event not more than twenty (20) days after the end of each fiscal quarter of the Company, an updated copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Company for each month following the end of such fiscal quarter through the Term Loan Maturity Date, in a form reasonably satisfactory to the Administrative Agent;
(i) no later than sixty (60) days after the Closing Date (or such later date as may be approved from time to time by the Administrative Agent in its sole discretion), a timetable by which benchmarks relating to operations and other restructuring steps are to be attained, which timetable shall be prepared by the Company in consultation with Deloitte & Touche LLP and shall be in form and substance reasonably satisfactory to the Administrative Agent;
(j) no later than the first Wednesday following the end of each calendar week ending after the Closing Date, a cash flow projection for the Company for the forthcoming thirteen-week period on a week-by-week basis, in a form reasonably satisfactory to the Administrative Agent;
(k) no later than each of the 15th day and the last Business Day of each fiscal month of the Company for the first three months following the Company’s engagement of Deloitte & Touche LLP (or such other financial advisor as is engaged in compliance with Section 6.15), and thereafter, no later than the last Business Day of each fiscal month of the Company, a report from Deloitte & Touche LLP (or such other advisor) in a form reasonably satisfactory to the Administrative Agent and, to the extent the timetable specified in clause (i) above has been delivered, accompanied by a progress report demonstrating implementation of the benchmarks specified in such timetable specified in clause (i) above;
(l) as soon as practicable following the Closing Date and thereafter, within 15 days of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request; and the PP&E Component of the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent’s asset valuation experts, (ii) concurrently with the sale or commitment to sell any assets constituting part of the PP&E Component, (iii) in the event such assets are idled for any reason other than routine maintenance or repairs for a period in excess of ten (10) consecutive days, and (iv) in the event that the value of such assets is otherwise impaired, as determined in the Administrative Agent’s Permitted Discretion;
(m) at such times as may be requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent:
(i) a detailed aging of each Loan Party’s Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor;
(ii) a schedule detailing each Loan Party’s Inventory, in form reasonably satisfactory to the Administrative Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory shall be valued at the lower of cost (determined on a first-in, first-out basis) or market and adjusted for Reserves as the Administrative Agent has previously indicated to the Company are deemed by the Administrative Agent to be appropriate, and (2) including a report of any variances or other results of Inventory counts performed by such Loan Party since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by such Loan Party and complaints and claims made against such Loan Party);
(iii) Contemporaneously with a worksheet of calculations prepared by each Loan Party to determine Eligible Accounts and Eligible Inventory, such worksheets detailing the quarterly Accounts and year-end Financial Statements required by Inventory excluded from Eligible Accounts and Eligible Inventory and the foregoing reason for such exclusion;
(iv) a reconciliation of each Loan Party’s Accounts and Inventory between (A) the amounts shown in such Loan Party’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred above and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of amounts and dates shown in the last day of such quarter or year reports delivered pursuant to clauses (as i) and (ii) above and the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
Borrowing Base Certificate delivered pursuant to clause (ivl) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio above as of such date;; and
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows a reconciliation of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any loan balance per each Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries Party’s general ledger to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected loan balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of under this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xin) Such promptly, from time to time, such other instrumentsinformation regarding the operations, agreements, certificates, opinions, statements, documents business affairs and information relating to the operations or condition (financial or otherwise) of Argosy the Company or its Subsidiariesthe Guarantors as any Lender may reasonably request. Notwithstanding anything to the contrary herein if, at any time, the Company shall create, establish or acquire any Subsidiary, all financial statements and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as information to be provided to the Administrative Agent and the Lenders pursuant to this Section 6.03 shall be prepared on a consolidated basis with respect to the Company and such Subsidiary or any Lender may from time to time reasonably requestSubsidiaries, as applicable.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestBank:
(ia) As as soon as available and in no any event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosy, a copy of the Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than within one hundred, hundred twenty (120) days after (or such earlier date as may be required by the close SEC, from time to time) of each the end of the fiscal year of Argosythe Company, (Ai) copies the audited consolidated and consolidating financial statements of the audited Financial Statements of Argosy Company and its Subsidiaries prepared on a which shall include the consolidated basis and consolidating balance sheet of the Company and its Subsidiaries as of the end of such fiscal year, together with the consolidated and consolidating statements of income, cash flow and retained earnings for the Company and its Subsidiaries for such 82 fiscal year and as of the end of and for the prior fiscal year, audited all prepared in accordance with Generally Accepted Accounting Principles consistently applied and setting forth in each case in comparative form the respective figures for the previous fiscal year end, and accompanied by an opinion thereon of independent certified public accountants of recognized national standing acceptable selected by the Company and satisfactory to the Administrative Agent, Bank (Bthe “Auditor”) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their which opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuingshall not include a going concern explanatory paragraph, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement qualification or exception as to the nature thereofscope of the audit and (ii) Form 10 K for such fiscal year as filed with the SEC;
(iiib) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no any event later than five within sixty (560) Business Days days (or such earlier date as may be required by the SEC, from time to time) after they are sentthe end of each of the first, made available second and third quarterly period of each fiscal year of the Company, a copy of (i) the unaudited consolidated and consolidating financial statements of the Company and its Subsidiaries, which shall include the unaudited consolidated and consolidating balance sheet of the Company and its Subsidiaries as of the end of each such quarter, together with the consolidated and consolidating statements of income, cash flow and retained earnings of the Company and its Subsidiaries for each such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail stating in comparative form the respective figures for the corresponding date and period in the previous fiscal year, all prepared by or filedunder the supervision of the Chief Financial Officer of the Company in accordance with Generally Accepted Accounting Principles applied on a consistent basis and (ii) Form 10 Q for such fiscal quarter as filed with the SEC;
(c) a certificate prepared and signed by the Auditor concurrently with each delivery of the financial statements required by clause (a) above stating that as of the close of the period covered by such financial statements the Company and its Subsidiaries were in compliance with Sections 7.13, and demonstrating in detail the calculations supporting that statement;
(d) a certificate prepared and signed by the Chief Financial Officer with each delivery of financial statements required by clauses (a) and (b) above, as to whether or not, as of the close of such preceding period and at all times during such preceding period, the Company and its Subsidiaries were in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Chief Financial Officer shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the nature thereof, whether or not the same shall constitute an Event of Default hereunder;
(e) at all times indicated in (a) above, a copy of the management letter, if any, prepared by the CPA;
(f) at all times indicated in (a) and (b) above, a report of the status of the Permitted Action;
(g) promptly, after filing thereof, copies of (A) all registration statements regular and periodic financial information, proxy materials and other information and reports filed by Argosy which the Company or any of its Subsidiaries shall file with the SEC;
(h) promptly after submission to any securities exchange government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the United States Securities normal course of business and Exchange Commission which would not reasonably be expected to result in any adverse action to be taken by such agency; and
(including all 10-Qi) promptly, 10-K from time to time, such other information regarding the operations, business affairs and 8-Q reports)condition, (B) all reportsfinancial or otherwise, proxy statements and financial statements sent or made available by Argosy of the Company or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender Bank may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers In the case of the Borrower, furnish to each of the Administrative Agent and the Bondholder Designee, which shall furnish to each Lender (including VPC, but only until the Administrative Agent, with sufficient copies for each Lender, the following, each in such form VPC Loan Termination Date) and such detail as the Administrative Agent or the Required Lenders shall reasonably requestHolder:
(ia) As soon as available and in no event later than forty-five (45) within 90 days after the last day end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by McGladrey & ▇▇▇▇▇▇, LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not include (i) an explanatory paragraph expressing doubt about the ability of the Borrower and its consolidated Subsidiaries to continue as a going concern or (ii) any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year year, its consolidated balance sheet and related statements of Argosyincome, a copy stockholders’ equity and cash flows showing the financial condition of the Financial Statements of Argosy Borrower and its consolidated Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to date, certified by the president or chief financial officer as of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each such fiscal year quarter and the results of Argosyits operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the
(c) concurrently with any delivery of financial statements under paragraph (a), (Ab) copies or (e)(B)(ii) of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of ArgosySection 5.04, a certificate of the chief financial officer or treasurer of Argosy accounting firm (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregatecase of paragraph (a)) or a Compliance Certificate signed by a Financial Officer (in the case of paragraphs (b) and (e)(B)(ii)) opining on or certifying such statements (which certificate, (Cwhen furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement and certifying that no Event of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and the extent thereof and any corrective action which Argosy proposes taken or proposed to take be taken with respect thereto;
(vid) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) within 90 days after the commencement beginning of each fiscal year of Argosythe Borrower, the a detailed consolidated budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, year (including a projected consolidated balance sheets, sheet and related statements of income projected operations and retained earnings and statements of cash flow flows as of the Loan Partiesend of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, all in reasonable detail and in promptly when available, any event to include projected Capital Expenditures and quarterly projections significant revisions of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreementsuch budget;
(viiie) As soon as possible and in no event later than (A) (i) within ten (10) days prior to Business Days after the acquisition by any Loan Party end of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or moreeach calendar month (the “Applicable Month”), a written supplement to SCHEDULE 4.01(hCovenant Certificate (together with reasonable supporting information) that demonstrates that, as of the last Business Day of such month (the “Covenant Date”);
, the Borrower was in compliance with Section 6.09(b) of this Agreement and (ixii) As soon as possible and in no event later than within five (5) Business Days after the receipt thereof by Argosy or any Liquidity Date, a Liquidity Certificate (together with reasonable supporting information) that demonstrates that, as of a Business Day of each calendar week (the “Liquidity Date”, it being understood and agreed that the Liquidity Date in each calendar week is at the election of the Borrower), commencing with the first full calendar week after the Closing Date, the Borrower was in compliance with Section 6.09(a) of this Agreement (it being understood that compliance with Section 6.09(c) shall be set forth in a separate certificate delivered in accordance with Section 6.09(c) herein), (B) within thirty (30) days after the end of each Applicable Month: (i) a statement of accounts for the deposit accounts and securities accounts of the Borrower and its Subsidiaries, identifying the owner of each such account, whether such account is a Controlled Account and setting forth the balance in such account as of the Business Day immediately preceding delivery of such statement and (ii) the Borrower’s consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such month and the results of its operations and the operations of such Subsidiaries during such month and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and (C) if requested by the Administrative Agent, within twenty (20) days after the end of each calendar month, for the calendar month then ending, reports in form and substance reasonably satisfactory to Bondholder Designee, setting forth an aging of Loan Receivables, a schedule of Loan Receivables, detailed delinquency report books and records consisting of data tape information of Loan Receivables in a format and consisting of data elements reasonably acceptable to Bondholder Designee (provided, however, on reasonable request by Bondholder Designee, the Borrower shall deliver such data tape information of Borrower’s portfolio), and a repossession report in respect of any Title Loan Receivables;
(f) promptly after the same become publicly available, copies of any and all material notices periodic and other material adverse communications from reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority with respect succeeding to any Loan Party or any Gaming Facility and promptly upon the request all of the Administrative Agent functions of said Commission, or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority national securities exchange, or other Governmental Authority with respect distributed to any Gaming Facilityits shareholders, as the case may be;
(xg) As soon as possible and in no event later than five (5) Business Days promptly after the receipt thereof by Argosy the Borrower or any of its SubsidiariesSubsidiary, a copy of any notice, summons, citations or other written communications concerning “management letter” received by any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of such Person from its Subsidiaries for Environmental Damages; andcertified public accountants and the management’s response thereto;
(xih) Such promptly after the request by any Lender or Holder (including VPC, but only until the VPC Loan Termination Date), all documentation and other instrumentsinformation that such Lender or Holder reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, agreements, certificates, opinions, statements, documents and information relating to including the operations or condition USA PATRIOT Act;
(financial or otherwisei) of Argosy or its Subsidiaries, and compliance promptly after the request by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender or Holder (including VPC, but only until the VPC Loan Termination Date), copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(j) promptly, from time to time time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Bondholder Designee or any Lender or Holder (including VPC, but only until the VPC Loan Termination Date) may reasonably request; and
(k) on the dates that the monthly financial statements under clause (e)(B)(ii) above are delivered, the loan data tape with customer contacts, performance metrics and other collections data applicable to the Loan Receivables shall be delivered to the Backup Servicer in accordance with the Backup Servicing Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Community Choice Financial Inc.)
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 100 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders’ equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10-K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10-K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) As soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosy(other than the fiscal quarter ending June 20, a copy 2006), either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit C) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit C hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.6 and 6.7;
(vd) As soon as possible and is practicable, but in any event no event later than five September 30, 2006, the financial statements described in Sections 5.1(a) and 5.1(b) for the fiscal periods of the Borrower ended December 31, 2005, March 31, 2006 and June 30, 2006;
(5e) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or existence Event of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement a certificate of the president or president, chief financial officer or treasurer chief accounting officer of Argosy setting forth details the Borrower specifying the nature and period of existence of such event, condition Default or Event of Default and what action the action which Argosy Borrower has taken, is taking and proposes to take with respect thereto;
(vif) If requested by Promptly upon any executive officer of the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy Borrower or any of its Subsidiaries with obtaining knowledge of (i) the institution of any securities exchange action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy Borrower or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy their assets, or (ii) any of its Subsidiaries material development in any such action, suit, proceeding, investigation or arbitration (whether or not previously disclosed to the public generally;
(vii) As soon as availableLenders), and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, includingwhich, in each casecase might reasonably be expected to have a Material Adverse Effect, projected balance sheets, statements of income prompt notice thereof and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event such other information as may be reasonably available to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
it (viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or moreapplicable evidentiary privilege) to enable the Lenders to evaluate such matters, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xig) Such Promptly, such additional financial and other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers (a) Until such time as the Company becomes subject to the periodic reporting provisions of the Exchange Act, so long as any Holder shall hold Warrants or Warrant Shares, as the case may be, the Company shall furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestHolder:
(i) As soon as available and in no event later than forty-five (45) within 100 days after the last day of each of the first three fiscal quarters end of each fiscal year of Argosythe Company, a copy consolidated balance sheet of the Financial Statements of Argosy Company and its Subsidiaries prepared on subsidiaries as of the end of such fiscal year and the related consolidated statements of income, changes in shareholders' equity and cash flows of the Company and its subsidiaries for the fiscal year then ended, together with supporting notes thereto, certified in accordance with generally accepted accounting principles, without qualification as to scope of audit, by Price Waterhouse or another firm of independent public accountants of recognized national standing selected by the Company and reasonably acceptable to the Holder,
(ii) within 45 days after the end of each fiscal quarter (other than the last quarter in each fiscal year), a consolidated basis balance sheet of the Company and its subsidiaries and the related consolidated statement of income, unaudited but certified by the principal financial officer of the Company, such balance sheets to be as of the end of such quarter and such statements of income to be for such quarter and for the period from the beginning of the fiscal year to datethe end of such quarter, certified by the president or chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (each case subject to normal year-end audit adjustments);
(ii) As soon as available adjustments and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofwithout supporting notes;
(iii) Contemporaneously prompt notice of (x) any event of default under any agreement with respect to material indebtedness for borrowed money or a material purchase money obligation, and any event which, upon notice or lapse of time or both, would constitute such an event of default which would permit the quarterly and year-end Financial Statements required by holder of such indebtedness or obligation to accelerate the foregoing clauses (i) maturity thereof, and (ii)y) any action, a compliance certificate suit or proceeding at law or in equity or by or before any governmental instrumentality or agency which, if adversely determined, would materially impair the right of the president Company or chief any of its subsidiaries to carry on its business substantially as now or then conducted, or materially affect the business, operations, properties, assets or financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as condition of the last day of such quarter or year (Company and its subsidiaries taken as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;a whole; and
(iv) As soon as available promptly, from time to time, such other information regarding the operations, business, affairs and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate financial condition of the chief financial officer Company or treasurer of Argosy any subsidiary as the Holder may reasonably request.
(a "PRICING CERTIFICATE"b) which sets forth At such time as the calculation Company becomes subject to the periodic reporting provisions of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any DefaultExchange Act, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filedCompany shall provide each Holder promptly upon filing, copies of (A) all final or effective registration statements statements, prospectuses, periodic reports and reports other documents filed by Argosy the Company or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers subsidiaries with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestCommission.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish or cause to the Administrative Agent, with sufficient copies be furnished to Agent for each Lender (and Agent shall promptly thereupon furnish to each Lender, ) the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of the first three fiscal quarters of each fiscal year of ArgosyKoko`oha, a copy of the Financial Statements of Argosy Koko`oha and its Koko`oha’s Subsidiaries prepared on a consolidated basis for such quarter and for the fiscal year to datedate (prepared on a consolidated and consolidating basis), certified by the president or chief financial officer an Executive Officer of Argosy Koko`oha to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-year end audit adjustmentsadjustments and the possible absence of footnotes);
(ii) As soon as available and in no event later than one hundred, one-hundred and twenty (120) days after the close of each fiscal year of ArgosyKoko`oha, (A) copies of the audited consolidated Financial Statements of Argosy Koko`oha and its Koko`oha’s Subsidiaries prepared on a consolidated basis for such 82 fiscal year, audited prepared by independent certified public accountants of recognized national standing an accounting firm acceptable to the Administrative Agent, and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, and management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofStatements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred a certificate of an Executive Officer of Borrower in the form of Exhibit I, appropriately completed (a “Compliance Certificate”) and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, management’s discussion of Koko`oha’s operations for the quarter or year period covered by such Financial Statements Statements, including a comparison with Koko`oha’s operations for the corresponding quarter in the immediately preceding fiscal year or as of with the last day of such quarter or year (immediately preceding fiscal year, as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03a budget variance analysis;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party Borrower knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, ; (B) any actual or threatened litigation, suitssuits or claims (including any notices of default) against Borrower or its Subsidiaries including, claims or disputes against without limitation with respect to any Loan Party Contractual Obligation, involving potential monetary damages payable by Borrower or any Loan Party of its Subsidiaries of $10,000,000 1,000,000.00 or more (alone or in the aggregate) not covered by insurance; (C) any violation or any allegation of a violation by Borrower or Borrower’s Subsidiaries of any Governmental Rule, including without limitation any Hazardous Materials Laws, involving potential penalties, costs or monetary damages payable by Borrower or any of its Subsidiaries of $1,000,000.00 or more (alone or in the aggregate), or any investigation of Borrower or Borrower’s Subsidiaries with respect to an alleged violation of any Governmental Rule by any Governmental Authority having authority to enforce any Government Rules, including without limitation, any Hazardous Materials Laws that is likely to involve potential penalties, costs or monetary damages payable by Borrower or any of its Subsidiaries of $1,000,000.00 or more (Calone or in the aggregate); (D) the loss or non-renewal of any Material Contract; (E) any other event or condition which is reasonably likely to have a Material Adverse Effect, ; or (DF) any Default or Event of Default, ; the statement of the president or chief financial officer or treasurer an Executive Officer of Argosy Borrower setting forth details of such event, condition condition, Default or Event of Default and the action which Argosy Borrower proposes to take with respect thereto;
(viv) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five At least thirty (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (4530) days after the commencement first day of each fiscal year of ArgosyBorrower, the consolidated operating budget of Koko`oha and projected financial statements of the Loan Parties its Subsidiaries for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of including quarterly cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures projections and quarterly projections of the Borrowers' Koko`oha’s compliance with each of the covenants set forth in SECTION 5.03 of this AgreementParagraph 5.03;
(viiivi) As soon as possible and in no event later than ten At least sixty (1060) days prior to the acquisition by any Loan Party expiration of any leasehold leases of, or ownership interest in licenses or permits to use, real property with held by Borrower or Borrower’s Subsidiaries (or if any such license or permit is revocable or month-to-month or if the applicable premises is affected by a fair market value casualty or condemnation and either party elects to terminate or if there is a termination for any other reason, then promptly upon receipt or giving of $10,000,000 a notice of termination) Borrower shall notify Agent and provide financial projections indicating the financial impact of the expiration or moretermination of any such lease, license or permit on the financial covenants set forth in Section 5.03. The information provided shall include a written supplement to SCHEDULE 4.01(h)detailed income statement of the location for which the lease, license or permit is expiring or being terminated, if applicable;
(ixvii) As soon as possible and in no event later than five (5) Business Days after Such other information relating to compliance by Borrower with the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request terms of the Administrative Credit Documents to which it is a party as any Lender through Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect may from time to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagestime reasonably request; and
(xiviii) Such other instruments, agreements, certificates, opinions, statements, documents documents, operating performance reports and information relating to the operations or condition (financial or otherwise) of Argosy Borrower or any of its Subsidiaries, and compliance by the Borrowers Borrower with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender through Agent may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 90 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) Commencing with the quarter ending June 30, 1997 and as soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit D) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of such date;
Exhibit D hereto (vi) As soon as possible and in no event later than five (5) Business Days after any officer stating whether or not the signer has knowledge of any Loan Party knows Default or Event of Default and, if so, specifying each such Default or Event of Default of which the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default signer has knowledge and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, nature thereof and (Cii) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all demonstrating in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each the provisions of the covenants set forth in SECTION 5.03 of this AgreementSections 6.7 and 6.8;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Five Year Competitive Advance and Revolving Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers shall Borrower and the Guarantors will maintain, for the Consolidated Group, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably requestLenders:
(i) As as soon as available and available, but in no any event not later than forty-five (45) 60 days after the last day of each of the first three fiscal quarters close of each fiscal year of Argosyquarter, for the Consolidated Group an unaudited quarterly financial statement (including a copy of the Financial Statements of Argosy balance sheet and its Subsidiaries prepared on a consolidated basis income statement) for such quarter period and for the portion of the fiscal year to datethrough the end of such period, setting forth in each case in comparative form the figures for the previous year, all certified by the president or Equity Inns' chief financial officer of Argosy to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments)chief executive officer;
(ii) As soon as available and available, but in no any event not later than one hundred, twenty (120) 60 days after the close of each fiscal year quarter, for the Consolidated Group, related reports in form and substance satisfactory to the Lenders, all certified by Equity Inns' chief financial officer or chief accounting officer, including a statement of ArgosyFunds From Operations, (A) copies calculation of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsfinancial covenants described below, a Default has occurred report listing and is continuingdescribing all newly acquired Properties, a statement summary property information for all Properties, and such other information as may be requested to the nature thereofevaluate any other certificates delivered hereunder;
(iii) Contemporaneously As soon as publicly available but in no event later than the date such reports are to be filed with the quarterly Securities Exchange Commission, copies of all Form 10Ks, 10Qs, 8Ks, and year-end Financial Statements required any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information filed with the Securities Exchange Commission along with all other materials distributed to shareholders and limited partners by the foregoing clauses (i) and (ii)Borrower or the Guarantors, including a compliance certificate copy of the president or Equity Inns annual report containing audited annual financial statements. All such annual and quarterly reports shall be certified by the chief executive officer and chief financial officer or treasurer officer; notwithstanding the foregoing, Borrowers and Guarantors shall not be required to provide copies of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Form 10Ks and is continuing, or, if any such Default has occurred and is continuing, a statement as 10Qs to the nature thereof and what action extent same are available at no cost on the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03internet;
(iv) As soon as available and available, but in no any event not later than forty-five sixty (4560) days after the last day end of each of the first three fiscal quarters, and not later than 90 days after the close of each fiscal quarter of Argosyyear, a certificate of reports in form and substance satisfactory to the Lenders, certified by Equity Inns' chief financial officer or treasurer chief accounting officer containing a recap of Argosy Net Operating Income, less (i) Agreed FF&E Reserves, (ii) real estate taxes and (iii) Ground Lease Expense, as applicable, for each individual Property owned by the Borrower or a "PRICING CERTIFICATE") which sets forth Wholly Owned Subsidiary and included in the calculation of the Total Funded Debt to EBITDA Ratio as of such dateBorrowing Base;
(v) Not later than sixty (60) days after the end of each of the first three fiscal quarters, and not later than ninety (90) days after the end of the fiscal year, a compliance certificate in substantially the form of Exhibit I hereto ("Compliance Certificate") signed by the Operating Partnership and Equity Inns' chief financial officer or chief accounting officer confirming that the Borrower and the Guarantors are in compliance with all of the covenants of the Loan Documents, showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) and stating that to such officer's best knowledge, there is no other Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof;
(vi) As soon as possible and in no any event later than five (5) within 10 Business Days after any officer of any Loan Party knows member of the occurrence or existence of (A) Consolidated Group knows that any Reportable Event under has occurred with respect to any Employee Benefit Plan or Multiemployer Plan, a statement, signed by the chief financial officer of Equity Inns, describing said Reportable Event and within 20 days after such Reportable Event, a statement signed by such chief financial officer describing the action which the Consolidated Group proposes to take with respect thereto; and (Bb) within 10 Business Days of receipt, any notice from the Internal Revenue Service, PBGC or Department of Labor with respect to a Plan regarding any excise tax, proposed termination of a Plan, prohibited transaction or fiduciary violation under ERISA or the Code which could result in any liability to the Consolidated Group in excess of $100,000; and (c) within 10 Business Days of filing, any Form 5500 filed with respect to a Plan by any member of the Consolidated Group which includes a qualified accountant's opinion.
(vii) As soon as possible and in any event within 30 days after receipt, a copy of (a) any actual notice or threatened litigationclaim to the effect that any member of the Consolidated Group is or may be liable to any Person as a result of the release by such entity or any other Person of any toxic or hazardous waste or substance into the environment, suitsand (b) any notice alleging any violation of any federal, claims state or disputes against any Loan Party involving potential monetary damages payable local environmental, health or safety law or regulation by any Loan Party member of $10,000,000 or more (alone or the Consolidated Group, which, in the aggregate)either case, (C) any other event or condition which is could be reasonably likely to have a Material Adverse Effect;
(viii) Promptly upon the distribution thereof to the press or the public, copies of all press releases;
(ix) As soon as possible, and in any event within 10 days after the Borrower knows of any fire or (D) other casualty or any Defaultpending or threatened condemnation or eminent domain proceeding with respect to all or any material portion of any Collateral Pool Asset, the a statement of the president describing such fire, casualty or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default condemnation and the action which Argosy proposes Borrower intends to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instrumentsinformation (including, agreementswithout limitation, certificates, opinions, statements, documents and information relating to the operations or condition (non financial or otherwiseinformation) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request. The request for a reappraisal of any Collateral Pool Asset, as long as such Collateral Pool Asset has not been the subject of an Appraisal in the preceding 12 months, is hereby deemed reasonable; and
(xi) Within ten (10) Business Days after the request of the Administrative Agent, a financial statement showing Adjusted EBITDA, Ground Lease Expense, Fixed Charges and Interest Expense for the period of twelve (12) full months ending immediately prior to the date of such request.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Equity Inns Inc)
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies Agent for each Lender, Lender the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:request (copies of which Agent shall promptly deliver to each Lender):
(i) As soon as available and in no event later than forty-five fifty (4550) days after the last day of each fiscal quarter of the first three fiscal quarters of each fiscal year of ArgosyBorrower, a copy of the Financial Statements of Argosy Borrower and its Subsidiaries (prepared on a consolidated basis basis) for such quarter and for the fiscal year to date, certified by the president or chief financial officer of Argosy Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty hundred (120100) days after the close of each fiscal year of ArgosyBorrower, (A) copies of the audited Financial Statements of Argosy Borrower and its Subsidiaries (prepared on a consolidated basis basis) for such 82 year, audited prepared by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, and management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofStatements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses CLAUSES (i) and AND (ii), a compliance certificate (the "COMPLIANCE CERTIFICATE") of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") Borrower which (A) states that no Event of Default and no Default has occurred and is continuing, or, if any such Event of Default or Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; , and (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.in
Appears in 1 contract
Sources: Credit Agreement (Lam Research Corp)
Financial Statements, Reports, etc. The Borrowers Borrower shall furnish to the Administrative Agent, with sufficient copies for Agent and each Lender, Lender the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of Argosythe Borrower, a copy of the Financial Statements of Argosy the Borrower and its Subsidiaries (prepared on a consolidated basis basis) for such quarter and for the fiscal year to date, certified by the president or president, chief financial officer or treasurer of Argosy the Borrower to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments), which Financial Statements shall be accompanied by a narrative from management of the Borrower which discusses results;
(ii) As soon as available and in no event later than one hundred, twenty ninety (12090) days after the close of each fiscal year of Argosythe Borrower, (A) copies of the audited Financial Statements of Argosy the Borrower and its Subsidiaries (prepared on a consolidated basis and consolidating basis) for such 82 year, in the case of the consolidated Financial Statements, audited by a firm of independent certified public accountants of recognized national standing acceptable to the Administrative Agent, which Financial Statements shall be accompanied by a narrative from management of the Borrower which discusses results and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereofStatements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses clause (i) and within forty-five (ii)45) days after the close of each fiscal year of the Borrower, a compliance certificate of the president or president, chief financial officer or treasurer of Argosy the Borrower in substantially the form of Exhibit L (a "COMPLIANCE CERTIFICATE"“Compliance Certificate”) which (A) states that no Default or Event of Default has occurred and is continuing, or, if any such Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose Borrower proposes to take with respect thereto; thereto and (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION Section 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after the Parent, the Borrower or any officer Subsidiary of any Loan Party the Borrower knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Pension Plan or Multiemployer Plan, ; (B) any actual or threatened litigation, suits, claims or disputes against the Borrower or any Loan Party involving potential of its Subsidiaries which could reasonably be expected to result in monetary damages payable by the Parent, the Borrower or any Loan Party Subsidiary of the Borrower of $10,000,000 1,000,000 or more (alone or in the aggregate), ; (C) any other event or condition which is which, either individually or in the aggregate, could reasonably likely be expected to have a Material Adverse Effect, ; or (D) any Default or Event of Default, the statement of the president or chief financial officer or treasurer of Argosy the Borrower setting forth details of such event, condition or Default and the action which Argosy the Borrower proposes to take with respect thereto;
(viv) If requested by the Administrative Agent or any Lender, as As soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(Avi) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holdersAs soon as possible, and in any event not later than thirty (C30) all press releases days after the end of each month, consolidated and other similar public announcements concerning any material developments consolidating balance sheets, statements of cash flow and statements of income reflecting the most recently completed month (in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries form acceptable to the public generallyAdministrative Agent);
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement end of each fiscal year of Argosythe Borrower, the budget and projected consolidated financial statements of the Loan Parties Parent, the Borrower and the Subsidiaries of the Borrower for such the next fiscal year, including, budgets for each month in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreementsuch fiscal year;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by the Parent, the Borrower or any Loan Party Subsidiary of the Borrower of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or moreproperty, a written supplement to SCHEDULE Schedule 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after prior to the receipt thereof by Argosy or any of its Subsidiaries, copies occurrence of any and all material notices and other material adverse communications from any Governmental Authority with respect event or circumstance that would require a prepayment pursuant to any Loan Party or any Gaming Facility and promptly upon Section 2.07(c), the request statement of a Responsible Officer of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming FacilityBorrower setting forth the details thereof;
(x) As soon as possible and in no event later than five ten (510) days prior to the establishment or acquisition by the Borrower or any of its Subsidiaries of any new Subsidiary or any new Equity Securities of any existing Subsidiary, notice thereof;
(xi) As soon as possible and in no event later than ten (10) Business Days after the receipt thereof by Argosy the Borrower or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications (other than routine notices and communications) concerning any actual, alleged, suspected or threatened material violation of any applicable Environmental Law, or any material liability of Argosy the Borrower or any of its Subsidiaries for Environmental DamagesDamages but excluding any notice, summons, citation or communication concerning a violation that is not reasonably likely to exceed, individually or in the aggregate with any such other notices, summonses, citations or communications, $750,000;
(xii) Upon delivery of any notices by the Borrower to the holders of the Mezzanine Debt which are required pursuant to sections 4C or 4E of the Securities Purchase Agreement, copies of such notices; and
(xixiii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy the Borrower or its Subsidiaries, and compliance by the Borrowers Borrower with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish In the case of the Borrower, deliver to the Administrative Agent, with sufficient copies Agent for prompt further distribution to each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower (beginning with the fiscal year ending December 31, 2019), a consolidated balance sheet of the followingBorrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in such comparative form the figures for the previous fiscal year, all in reasonable detail and such detail as prepared in accordance with GAAP, audited and accompanied by a report and opinion of KPMG LLP, any other independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Administrative Agent or and the Required Lenders shall reasonably request:
(such approval not to be unreasonably withheld, conditioned or delayed), which report and opinion (i) As soon shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to qualifications or exceptions as available to the scope of such audit, (iii) shall be without a “going concern” disclosure or like qualification or exception (other than with respect to, or disclosure or an exception or qualification solely resulting from, (x) the impending maturity of any Indebtedness or (y) any prospective or actual default under any financial covenant and in no event later than forty-five (45iv) shall be accompanied with customary management discussion and analysis;
(b) within 45 days after the last day end of each of the first three (3) fiscal quarters of each fiscal year of Argosythe Borrower (commencing with the fiscal quarter ended September 30, 2019), a copy consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a as at the end of such fiscal quarter, and the related (x) consolidated basis statements of income or operations for such fiscal quarter and for the portion of the fiscal year to datethen ended and (y) consolidated statements of cash flows for such fiscal quarter and the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the president or chief financial officer of Argosy to present Borrower as fairly presenting in all material respects the financial condition, results of operations and other information reflected therein cash flows of the Borrower and to have been prepared its Subsidiaries in accordance with GAAP (GAAP, subject only to normal year-end audit adjustments);adjustments and the absence of footnotes and accompanied by customary management discussion and analysis; and
(iic) As soon as available and in no event later than one hundred, twenty (120) within 90 days after the close end of each fiscal year (commencing with the fiscal year ending December 31, 2019) of Argosythe Borrower, a reasonably detailed consolidated budget for the following fiscal year on a quarterly basis (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash flows and projected income and a summary of the material underlying assumptions applicable thereto) (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such Projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such Projections, it being understood by the Agents and the Lenders that such projections as to future events (i) are not to be viewed as facts, (ii)(A) are subject to significant uncertainties and contingencies, which may be beyond the control of the Borrower and its Restricted Subsidiaries, (B) no assurance is given by the Borrower and its Restricted Subsidiaries that the results or forecast in any such projections will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may be material and (iii) are not a guarantee of performance and that actual results during the period or periods covered by any such projections may vary significantly from the projected results and such differences may be material. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 or Section 6.02(b) may be satisfied with respect to information of the Borrower and the Subsidiaries by furnishing within the time period specified in the applicable paragraph (A) the applicable financial statements of the Borrower or (B) the Borrower’s Form l0-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B), to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of KPMG LLP, any other independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Administrative Agent and the Required Lenders (such approval not to be unreasonably withheld, conditioned or delayed), which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to qualifications or exceptions as to the scope of such audit and (iii) shall be without a “going concern” disclosure or like qualification or exception (other than with respect to, or disclosure or an exception or qualification solely resulting from, (A) copies the impending maturity of any Indebtedness or (B) any prospective or actual default under any financial covenant). Documents required to be delivered pursuant to Section 6.01(a), (b), (c) and (d) or Section 6.02(b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the audited Financial Statements of Argosy earliest date on which (i) Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable provides notice thereof to the Administrative Agent; (ii) such documents are posted on Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (Bwhether a commercial, third-party website or whether sponsored by the Administrative Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at ▇▇▇.▇▇▇.▇▇▇; provided that: (i) promptly following written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the unqualified opinions (or qualified opinions reasonably acceptable Compliance Certificates required by Section 6.02(a) to the Administrative Agent) and; provided, to the extent deliveredhowever, management letters that if such Compliance Certificate is first delivered by such accountants in connection with all such Financial Statements and (C) certificates electronic means, the date of such accountants to delivery by electronic means shall constitute the Administrative Agent stating that in making the examination necessary date of delivery for their opinion they have reviewed this Agreement and have obtained no knowledge purposes of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(hSection 6.02(a);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 90 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) As soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit D) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit D hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.7 and 6.8;
(vd) As soon as possible and in no event later than five (5) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and
(Ae) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of (i) the institution of any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any Reportable Event under material development in any Employee Benefit Plan such action, suit, proceeding, investigation or Multiemployer Plan, arbitration (B) any actual whether or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in not previously disclosed to the aggregateLenders), (C) any other event or condition which is which, in each case might reasonably likely be expected to have a Material Adverse Effect, or prompt notice thereof and such other information as may be reasonably available to it (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestevaluate such matters.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Agreement (Cendant Corp)
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 100 days after the last day end of each fiscal year of the Borrower, (i) either (A) consolidated statements of income (or operations) and consolidated statements of cash flows and changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such year and the related consolidated balance sheets as at the end of such year, or (B) the Form 10K filed by the Borrower with the Securities and Exchange Commission and (ii) if not included in such Form 10K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods;
(b) As soon as is practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on a consolidated basis Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of income and cash flows for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit D) signed by the president or chief financial officer, the chief accounting officer of Argosy to present fairly in all material respects the or a vice president responsible for financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies administration of the audited Financial Statements of Argosy and its Subsidiaries prepared on a consolidated basis for Borrower to the effect that such 82 yearfinancial statements, audited while not examined by independent certified public accountants of recognized national standing acceptable to the Administrative Agentaccountants, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) andreflect, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements his opinion and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountantsthe Borrower, a Default has occurred and is continuing, a statement as all adjustments necessary to present fairly the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate financial position of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred Borrower and is continuingits Consolidated Subsidiaries, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosythis Section 5.1, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt to EBITDA Ratio as Borrower, substantially in the form of Exhibit D hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such dateDefault or Event of Default of which the signer has knowledge and the nature thereof and (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.6 and 6.7;
(vd) As soon as possible and in no event later than five (5) Business Days after Promptly upon any executive officer of the Borrower or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and
(Ae) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of (i) the institution of any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any Reportable Event under material development in any Employee Benefit Plan such action, suit, proceeding, investigation or Multiemployer Plan, arbitration (B) any actual whether or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in not previously disclosed to the aggregateLenders), (C) any other event or condition which is which, in each case might reasonably likely be expected to have a Material Adverse Effect, or prompt notice thereof and such other information as may be reasonably available to it (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action which Argosy proposes to take with respect thereto;
(vi) If requested by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably requestevaluate such matters.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Agreement (PHH Corp)
Financial Statements, Reports, etc. The Borrowers shall furnish Deliver to the Administrative Agent, with sufficient copies for each Lender, the following, each in such form and such detail as the Administrative Agent or the Required Lenders shall reasonably request:
(ia) As soon as available and is practicable, but in no any event later than forty-five (45) within 90 days after the last day end of each fiscal year of the Parent, (i) (A) consolidated and consolidating statements of income (or operations) and consolidated and consolidating statements of cash flows and changes in stockholders’ equity of the Parent and its Consolidated Subsidiaries for such year and the related consolidated and consolidating balance sheets as at the end of such year, or (B) the Form 10-K filed by the Parent with the Securities and Exchange Commission (which shall contain the consolidating financial statements described in the preceding clause (A)) and (ii) if not included in such Form 10-K, an opinion of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present in all material respects the consolidated financial position and results of operations of the Parent and its Consolidated Subsidiaries as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods and reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit;
(b) As soon as is practicable, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Argosyyear, a copy either (i) the Form 10-Q filed by the Parent with the Securities and Exchange Commission (which shall contain the consolidating financial statements described in the following clause (ii)) or (ii) the unaudited consolidated and consolidating balance sheets of the Financial Statements of Argosy Parent and its Subsidiaries prepared on a Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited consolidated basis statements of income and cash flows and consolidating statements of income for such quarter and for the period from the beginning of the then current fiscal year to datethe end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, certified and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit A) signed by the president or chief financial officer officer, the chief accounting officer, treasurer or a vice president responsible for financial administration of Argosy the Parent to the effect that such financial statements, while not examined by independent public accountants, reflect, in his opinion and in the opinion of the Parent, all adjustments necessary to present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one hundred, twenty (120) days after the close of each fiscal year of Argosy, (A) copies position of the audited Financial Statements of Argosy Parent and its Subsidiaries prepared on a consolidated basis for such 82 yearConsolidated Subsidiaries, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Administrative Agent) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), as at the calculation end of the financial ratios fiscal quarter and tests provided the results of their operations for the quarter then ended in SECTION 5.03conformity with GAAP consistently applied, subject only to year end and audit adjustments and to the absence of footnote disclosure;
(ivc) As soon as available Together with the delivery of the statements referred to in paragraphs (a) and in no event later than forty-five (45b) days after the last day of each fiscal quarter of Argosyabove, a certificate of the chief financial officer, chief accounting officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation vice president responsible for financial administration of the Total Funded Debt Parent, substantially in the form of Exhibit A hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default (as defined either in the Credit Agreement or PHH Credit Agreement) and, if so, specifying each such Default or Event of Default of which the signer has knowledge and the nature thereof, (ii) demonstrating in reasonable detail compliance with the provisions of Section 8.6, Section 8.7, Section 8.10 and Section 8.14, (iii) setting forth in a schedule (in the form of Schedule 7.1 attached hereto) a description of the Mortgage Warehouse Facilities and Servicing Advance Facilities in effect on the last day of the most recently ended fiscal quarter and (iv) setting forth in reasonable detail a description of repurchased mortgage loans, repurchase requests (existing and new), indemnification requests and payments made for such quarter and year to EBITDA Ratio as of such datedate periods, and comparisons to comparable periods for the prior year;
(vd) As soon as possible practicable, but in any event within 90 days after the end of each fiscal year of the Parent, detailed projections of the Parent and in no event later than five its Consolidated Subsidiaries for the following two fiscal years;
(5e) Business Days after Promptly upon any executive officer of the Parent or any Loan Party knows of its Subsidiaries obtaining knowledge of the occurrence of any Default or existence Event of Default (A) any Reportable Event under any Employee Benefit Plan as defined in either the Credit Agreement or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregatePHH Credit Agreement), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement certificate of the president or president, chief financial officer or treasurer chief accounting officer of Argosy setting forth details the Parent specifying the nature and period of existence of such event, condition Default or Event of Default and what action the action which Argosy Parent has taken, is taking and proposes to take with respect thereto;
(vif) If requested by Promptly upon any executive officer of the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy Parent or any of its Subsidiaries with obtaining knowledge of (i) the institution of any securities exchange action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available by Argosy Parent or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy their assets, or (ii) any of its Subsidiaries material development in any such action, suit, proceeding, investigation or arbitration (whether or not previously disclosed to the public generally;
(vii) As soon as availableLenders), and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements of the Loan Parties for such fiscal year, includingwhich, in each casecase might reasonably be expected to have a Material Adverse Effect, projected balance sheets, statements of income prompt notice thereof and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event such other information as may be reasonably available to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreement;
it (viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party without waiver of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement applicable evidentiary privilege) to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after enable the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect Lenders to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damagesevaluate such matters; and
(xig) Such Promptly, such additional financial and other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request. Any financial statement or filing with the Securities and Exchange Commission required to be delivered under this Parent Guaranty shall be deemed to have been delivered on the date on which the Parent notifies the Lenders it has posted such financial statement or filing on its website on the internet at ▇▇▇.▇▇▇.▇▇▇ or that such financial statement or filing is posted on the website of the Securities and Exchange Commission at ▇▇▇.▇▇▇.▇▇▇.
Appears in 1 contract
Sources: Parent Guaranty (PHH Corp)
Financial Statements, Reports, etc. The Borrowers shall furnish In the case of the Borrower, deliver to the Administrative AgentAgent and each of the Banks:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statement of income and cash flows, showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of the Borrower's operations and the operations of its Subsidiaries during such year, -54- audited by KPMG Peat Marwick or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with sufficient copies for each Lendergenerally accepted accounting principles consistently applied;
(b) concurrently with any delivery of financial statements under (a) above or (c) below, a certificate of the followingaccounting firm or a Responsible Officer, each in such form and such detail as the Administrative case may be, opining on or certifying such statements (i) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such an Event of Default or event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Agent or demonstrating compliance with the Required Lenders shall reasonably request:covenants contained in Sections 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10 and 6.17;
(i) As soon within twenty days of the end of each fiscal month, its unaudited consolidated balance sheet and related statements of income and cash flows showing the financial position of the Borrower and its Subsidiaries as available of the close of such fiscal month and the results of its operations and the operations of its Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, together with a comparison of such consolidated information with the written projections furnished by the Borrower to the Agent and with the results for such period in no event later than the previous fiscal year, all certified by a Responsible Officer as presenting fairly in all material respects the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with generally accepted accounting principles consistently applied, subject to normal year-end adjustments; and (ii) (x) within forty- five days of the end of each fiscal quarter, unaudited consolidating balance sheets of the Borrower and its Subsidiaries and related statements of income and cash flows and (y) within forty-five (45) days after of the last day end of each of the first three fiscal quarters of each the fiscal year of Argosythe Borrower, a copy unaudited consolidated balance sheets of the Financial Statements of Argosy Borrower and its Subsidiaries prepared on and related statements of income and cash flows, in each case showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of its Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, together with a consolidated basis comparison of such information with the written projections furnished by the Borrower to the Agent and with the results for such quarter and for period in the previous fiscal year to dateyear, all certified by the president or chief financial officer of Argosy to present a Responsible Officer as presenting fairly in all material respects the financial condition, position and results of operations of the Borrower and other information reflected therein and to have been prepared its Subsidiaries on a consolidating or consolidated basis, as the case may be, in accordance with GAAP (generally accepted accounting principles consistently applied, subject to normal year-end audit adjustments);
(iid) As promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be;
(e) as soon as available and in no any event later than one hundred, twenty (120A) within 20 days after the close Borrower or any of each fiscal year of Argosy, its ERISA Affiliates knows or has reason to know that any Termination Event described in clause (Ai) copies of the audited Financial Statements definition of Argosy Termination Event with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate has occurred and its Subsidiaries prepared on a consolidated basis for such 82 year, audited by independent certified public accountants of recognized national standing acceptable to the Administrative Agent, (B) copies within 5 days after the Borrower or any of the unqualified opinions (its ERISA Affiliates knows or qualified opinions reasonably acceptable has reason to the Administrative Agent) and, know that any other Termination Event with respect to the extent delivered, management letters delivered by any such accountants in connection with all such Financial Statements and (C) certificates of such accountants to the Administrative Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which Plan has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuingoccurred, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the president or chief financial officer or treasurer of Argosy (a "COMPLIANCE CERTIFICATE") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action the Borrowers propose to take with respect thereto; (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in SECTION 5.03;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Argosy, a certificate of the chief financial officer or treasurer of Argosy (a "PRICING CERTIFICATE") which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of Borrower describing such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Termination Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims or disputes against any Loan Party involving potential monetary damages payable by any Loan Party of $10,000,000 or more (alone or in the aggregate), (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, or (D) any Default, the statement of the president or chief financial officer or treasurer of Argosy setting forth details of such event, condition or Default and the action action, if any, which Argosy the Borrower or such ERISA Affiliate proposes to take with respect thereto;
(vif) If requested promptly and in any event within 5 days after receipt thereof by the Administrative Agent or any Lender, as soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by Argosy Borrower or any of its Subsidiaries with any securities exchange or ERISA Affiliates from the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-Q reports), (B) all reports, proxy statements and financial statements sent or made available PBGC copies of each notice received by Argosy the Borrower or any of its Subsidiaries to its security holders, and (C) all press releases and other similar public announcements concerning any material developments in the business of Argosy or any of its Subsidiaries made available by Argosy or any of its Subsidiaries to the public generally;
(vii) As soon as available, and in any event not later than forty-five (45) days after the commencement of each fiscal year of Argosy, the budget and projected financial statements such ERISA Affiliate of the Loan Parties for such fiscal year, including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow PBGC's intention to terminate any Single Employer Plan of the Loan Parties, all in reasonable detail and in Borrower or such ERISA Affiliate or to have a trustee appointed to administer any event to include projected Capital Expenditures and quarterly projections of the Borrowers' compliance with each of the covenants set forth in SECTION 5.03 of this Agreementsuch Plan;
(viii) As soon as possible and in no event later than ten (10) days prior to the acquisition by any Loan Party of any leasehold or ownership interest in real property with a fair market value of $10,000,000 or more, a written supplement to SCHEDULE 4.01(h);
(ix) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority with respect to any Loan Party or any Gaming Facility and promptly upon the request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(x) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by Argosy or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of Argosy or any of its Subsidiaries for Environmental Damages; and
(xi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Argosy or its Subsidiaries, and compliance by the Borrowers with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Carson Pirie Scott & Co /Il/)