Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 120 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; (b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period; (d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c); (e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operations, cash flows and ownersstockholders’ equity and cash flows, showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Ernst & Young LLP or other independent accountants auditors of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a not contain any material qualification or exception (other than “going concern” qualifications or like qualification (other than an exception or explanatory paragraph exceptions relating to the Bankruptcy Proceedings in such opinion with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditended December 31, 2009) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position condition and results of operations of the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet and related statements of operations operations, stockholders’ equity and cash flows flows, showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year (it being understood that such information shall be in reasonable detail and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Borrower as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotesnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that that, after reasonable inquiry, to the knowledge of such Financial Officer no Default or Event of Default or Default has occurred or, if such a Default or 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, thereto and (ii) demonstrating compliance with the covenants contained in Sections 6.01, 6.02, 6.03, 6.04 and 6.06 and (iii) in the case of any such certificate delivered in connection with any delivery of financial statements under paragraph (a) above for a fiscal year ended on or after December 31, 2010, setting forth a computation of the Financial Performance Covenants in reasonable detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration Excess Cash Flow for such transaction fiscal year (or, in the case of clause the fiscal year ended December 31, 2010, for the partial fiscal year commencing on July 1, 2010 and ending December 31, 2010);
(D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (iid) concurrently with the any delivery of financial statements under Section 5.04(a)paragraph (a) above, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(caccounting firm opining on such statements (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) and providing evidence stating that during the course of their examination of such compliancefinancial statements, including without limitation copies they obtained no knowledge of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)Default or Event of Default, except as specified in such certificate;
(e) promptlypromptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than (i) the exhibits to registration statements and (ii) any registration statements on Form S-8 or its equivalent) filed by SSCC or any of the Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority succeeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to any such Person’s shareholders (other than to SSCC or any of the Subsidiaries), as the case may be;
(f) in the case of SSCC, as soon as available, and in any event no later than 90 days after the end of each fiscal year, a consolidated annual plan, prepared in accordance with SSCC’s normal accounting procedures applied on a consistent basis, for the next fiscal year of SSCC; and
(g) promptly from time to time, such other information regarding the operations, business affairs and financial condition of SSCC and the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statementsas any Senior Agent, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); andrequest.
(fh) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents Information required to be delivered pursuant to this Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information (including, in the case of certifications required pursuant to clause (b) above, the certifications accompanying any such quarterly report pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), shall have been posted by the Administrative Agent under this Agreement on an IntraLinks or similar site to which the Lenders have been granted access or shall be available on the date such documents are made publicly available website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the SECAdministrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (SMURFIT-STONE CONTAINER Corp), Credit Agreement (Smurfit Stone Container Corp)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 95 days after the end of each fiscal year, a its annual report on Form 10-K as filed with the SEC, including its consolidated balance sheet and the related statements of operations, cash flows and owners’ equity consolidated earnings statement showing the its consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case condition as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing reasonably acceptable to selected by the Administrative Agent Company and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” qualification or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as with respect to the scope of such auditopinion) to the effect that such consolidated financial statements fairly present, in all material respects, present the Company’s financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its quarterly report on Form 10-Q as filed with the SEC, including its unaudited consolidated balance sheet and related statements of operations and cash flows consolidated earnings statement, showing the its consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case condition as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year (and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu each delivery of such unaudited statements shall be deemed a representation that such statements fairly present the Company’s financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation calculating the Consolidated Leverage Ratio in reasonable detail as of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end last day of the applicable fiscal period and calculating the Consolidated Interest Coverage Ratio in reasonable detail for the period of four fiscal quarters ending on the last day of such fiscal period;; and
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or as any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may Lender shall reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents . Information required to be delivered pursuant to this Section 5.04 are included in materials filed with the SEC, such documents 5.3 shall be deemed to have been effectively delivered (including for purposes of Section 8.1(b)) on the date on which the Company provides notice to the Administrative Agent under this Agreement (which notice the Administrative Agent shall promptly provide to the Lenders) that such information has been posted on the date SEC website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ (or any successor website), on the Company’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another relevant website identified in such documents are made publicly available notice and accessible by the SECLenders without charge. Any such notice by the Company or the Administrative Agent may be by e-mail to the addresses provided in or pursuant to Sections 8.1(b) and 8.1(c).
Appears in 2 contracts
Sources: Five Year Revolving Credit Facility Agreement (Mead Johnson Nutrition Co), Revolving Credit Facility Agreement (Mead Johnson Nutrition Co)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 days after the end of each fiscal year, a consolidated balance sheet and related consolidated statements of operations, income and retained earnings and of cash flows and owners’ equity of the Borrower showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their the operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesits consolidated subsidiaries during such year, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPbasis;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related consolidated statements of operations income and retained earnings and of cash flows of the Borrower, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their the operations of the Borrower and the consolidated subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of Officers to the Borrower, on behalf of the Borrower, as effect that such consolidated financial statements present fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a the Financial Officer of the Borrower (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, thereto and (ii) in the case of each delivery of statements, setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent (and (iiiaccompanied by any supporting information which shall have been reasonably requested by the Administrative Agent or the Required Lenders) certifying that demonstrating compliance with the Mortgage Requirement is satisfied at the end of the applicable fiscal periodcovenants contained in Sections 6.08 and 6.09;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it or any Subsidiary 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, or distributed to its shareholders, as the case may be (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary other than registration statements relating to employee benefit plans or (D) the contribution to the Borrower registration of Equity Interests in any Person acquired pursuant to a Group Acquisitionsecurities for selling security holders or pre-effective amendments, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orthat shall not be declared effective, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(eregistration statements), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant and the Subsidiaries, or compliance compli ance with the terms of any Loan Document, or such consolidating financial statementsDocument (including a certificate with respect thereto), as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (McDermott International Inc), Senior Secured Term Loan Agreement (McDermott International Inc)
Financial Statements, Reports, etc. Furnish The Borrower shall furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) within Not later than 90 days after the end of each semi-annual fiscal period, financial statements (including a balance sheet and the related statements of income, cash flows and retained earnings) of the Borrower prepared in accordance with generally accepted accounting principles (or other comprehensive basis of accounting acceptable to the Lender) for such period and for the period beginning on the first day of the fiscal year and ending on the last day of such period, together with statements in comparative form for the corresponding periods in the preceding fiscal year, and certified by an authorized representative of the Borrower.
(b) Not later than 120 days after the end of each fiscal year, financial statements (including a consolidated balance sheet and the related statements of operationsincome, cash flows and owners’ equity showing the financial position retained earnings) of the Borrower and its Subsidiaries and, if different, prepared in accordance with generally accepted accounting principles (or other comprehensive basis of accounting acceptable to the Borrower and the Restricted Subsidiaries, in each case as of the close of Lender) for such fiscal year and the consolidated results of their operations during such year and setting forth year, together with statements in comparative form the corresponding figures for the prior preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such certified public accountants (acceptable to the Lender, which opinion shall be without a “going concern” state in effect that (1) such financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles (or like qualification (other than an exception or explanatory paragraph with respect comprehensive basis of accounting acceptable to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness maturesLender, applied on a consistent basis, and (C) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, the financial position condition and results of operations of the Borrower for the periods covered and its Subsidiaries on a consolidated basis (2) except as disclosed in accordance with GAAP;
such opinion, in making the examination necessary for such opinion, such accountants have obtained no knowledge of (bA) within 60 days after the end existence of each any event of the first three fiscal quarters of each fiscal yeardefault under any Loan Document or under any instrument evidencing or securing any other indebtedness or liability, a consolidated balance sheet and related statements of operations and cash flows showing the financial position contingent or noncontingent, of the Borrower and its Subsidiaries and(B) the occurrence of any event which, if differentwith notice or lapse of time or both, the Borrower and the Restricted Subsidiaries, in each case as would constitute an Event of Default under any 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (Loan Documents or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the under any instrument evidencing or securing any other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP indebtedness or a Financial Officer contingent liability of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);.
(c) concurrently Together with any delivery of the financial statements under required by subsections (a) or and (b) above, a certificate of Crestwood GP or a Financial Officer an authorized representative of the Borrower stating that, except as disclosed in such certificate, (i1) certifying that no Event event of Default default exists under any of the Loan Documents or Default under any instrument evidencing or securing any other indebtedness or contingent liability of the Borrower, and (2) no event has occurred orand is continuing which, if with notice or lapse of time or both, would constitute an event of default under any of the Loan Documents or under any instrument evidencing or securing any other indebtedness or contingent liability of the Borrower. If any such an Event event of Default default exists or Default any such event has occurredoccurred and is continuing, specifying such certificate shall contain a description of the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;thereof.
(d) Within ten (i10) upon the consummation of (A) any Permitted Business Acquisitiondays after request therefor from Lender, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request rent schedule of the Administrative Agent (but notProject, in certified by the case Borrower, showing the name of such requesteach tenant, more often than annually)and for each tenant, an updated Perfection Certificate (orthe space occupied, to the extent such request relates to specified information contained in lease expiration date and the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);rent paid.
(e) promptlyNot later than 120 days after the end of each fiscal year, from time financial statements (including a balance sheet and the related statements of income, cash flows and retained earnings) of each Guarantor prepared in accordance with generally accepted accounting principles (or other comprehensive basis of accounting acceptable to timeLender) for such fiscal year, such together with statements in comparative form for the preceding fiscal year, and certified by the respective Guarantor.
(f) Such other information regarding the operations, business affairs and property or the financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year operations of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided thatGuarantors, if or the Holding Company Condition is satisfied Project as the Lender shall reasonably request, including, without limitation, copies of the date of the relevant financial Federal income tax statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and/or the Guarantors. The guaranties of the Guarantors may contain an acknowledgment of their obligations to furnish the financial reports, records and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECdescribed therein.
Appears in 2 contracts
Sources: Construction Loan Agreement (Roberts Realty Investors Inc), Construction Loan Agreement (Roberts Realty Investors Inc)
Financial Statements, Reports, etc. Furnish Borrower shall furnish to Agent the Administrative following, each in such form and such detail as Agent (which will promptly furnish such information to or the Lenders):Required Lenders shall reasonably request:
(ai) within 120 As soon as available and in no event later than fifty-five (55) days after the end last day of each fiscal yearquarter of FIL, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position copy of the Borrower Financial Statements of FIL and its Subsidiaries and(prepared on a consolidated basis) for such quarter and for the fiscal year to date, if differentcertified by the chief executive officer, chief operating officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice president of finance of FIL to present fairly in all material respects the Borrower financial condition, results of operations and the Restricted Subsidiaries, other information reflected therein and to have been prepared in each case accordance with GAAP (subject to normal year-end audit adjustments);
(ii) As soon as of available and in no event later than one hundred (100) days after the close of such each fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year FIL, (or in lieu of such audited financial statements A) copies of the Borrower audited Financial Statements of FIL (prepared on a consolidated and the Restricted Subsidiariesconsolidating basis) for such year, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent certified public accountants of recognized national standing reasonably acceptable to Agent, (B) copies of the Administrative Agent and accompanied by an opinion of such accountants unqualified opinions (which opinion shall be without or qualified opinions (other than a “going concern” or like qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) reasonably acceptable to Agent) of such accountants and (C) if available from such accountants, certificates of such accountants to 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 effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPnature thereof;
(biii) within 60 days after Contemporaneously with the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet quarterly and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and Financial Statements required by the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower foregoing clauses (i) certifying and (ii), a compliance certificate of the chief executive officer, chief operating officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice president of finance of Borrower (a “Compliance Certificate”) that (A) states that no Event of Default or Default has occurred and is continuing, or, if any such an Event of Default or Default has occurredoccurred and is continuing, specifying a statement as to the nature and extent thereof and any corrective what action taken or proposed Borrower proposes to be taken take with respect thereto, and (iiB) setting forth a computation sets forth, for the quarter or year covered by such Financial Statements or as of the Financial Performance Covenants in detail reasonably satisfactory to last day of such quarter or year (as the Administrative Agent and (iii) certifying that case may be), the Mortgage Requirement is satisfied at the end calculation of the applicable fiscal periodfinancial ratios and tests provided in Paragraph 5.03;
(div) As soon as possible and in no event later than five (i5) upon Business Days after any officer of Borrower knows of the consummation occurrence or existence of (A) any Permitted Business AcquisitionReportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual or threatened litigation or suits against FIL, Borrower or any of FIL’s Subsidiaries involving potential monetary damages payable by FIL, Borrower or any of FIL’s Subsidiaries of (x) Ten Million Dollars ($10,000,000) or more alone or (y) Twenty Million Dollars ($20,000,000) or more in the acquisition of any Relevant Subsidiaryaggregate, (C) any Person becoming other event or condition which is reasonably and substantially likely (alone or in the aggregate) to have a Relevant Subsidiary or Material Adverse Effect, (D) any Default or (E) any event of the contribution type described in Subparagraph 6.01(f) or (g) with respect to any Subsidiary, so long as such Subsidiary is determined at the time of such event to be a Significant Subsidiary, the statement of the chief executive officer, chief operating officer, chief financial officer, treasurer, assistant treasurer, controller or senior vice president of finance of such Borrower setting forth details of Equity Interests such event, condition or Default and the action which FIL and Borrower propose to take with respect thereto;
(v) 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 FIL, Borrower or any Person acquired pursuant of FIL’s Subsidiaries with the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports) and (B) all reports, proxy statements and financial statements sent or made available by FIL, Borrower or any of FIL’s Subsidiaries to a Group Acquisition, its security holders;
(vi) As soon as possible and in no event later than (A) fifty-five (55) days after the last day of each case if the aggregate consideration for such transaction fiscal quarter (or, or one hundred (100) days in the case of clause (Dthe last fiscal quarter of each fiscal year), written notice of any new Significant Subsidiary acquired or established during such Group Acquisition) exceeds $25.0 million, quarter or upon the reasonable request of the Administrative Agent (but not, any other change in the case of information set forth in Schedule 4.01(o) during such request, more often than annually), an updated Perfection Certificate quarter and (or, to the extent such request relates to specified information contained in the Perfection Certificate, such informationB) reflecting all changes since ten (10) days after the date that any entity becomes a Material Subsidiary, written notice setting forth each Subsidiary of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) FIL that has become a Material Subsidiary and indicating for each such new Material Subsidiary whether such Material Subsidiary is an Eligible Material Subsidiary or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)Ineligible Material Subsidiary;
(evii) promptlyAs soon as available and in no event later than five (5) Business Days after Borrower changes its legal name or the address of its chief executive office, from time written notice setting forth Borrower’s new legal name and/or new address; and
(viii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to timethe operations or condition (financial or otherwise) of FIL, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant FIL’s Subsidiaries, or and compliance by Borrower with the terms of any Loan Document, or such consolidating financial statements, this Agreement and the other Credit Documents as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than itself or one hundred and twenty (120) days following the first day or more Lenders may from time to time reasonably request. In lieu of each fiscal year furnishing to Agent hard copies of the Borrower, a budget for such fiscal year quarterly Financial Statements described in form customarily prepared by clause (i) above and the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations annual Financial Statements and auditor’s report described in clauses (a), (bii)(A) and (fii)(B) of this Section 5.04 may be satisfied with respect to financial information of the Borrower above and the Restricted Subsidiaries other documents referred to in clause (v) above, FIL may make such documents available to Lenders by furnishing posting such documents on its website located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and through the applicable financial statements of Crestwood Equity Partners; provided that United States Securities and Exchange Commission’s ▇▇▇▇▇ system (“▇▇▇▇▇”) or by transmitting such documents electronically to the extent such information relates to Crestwood Equity Partners, the Borrower Lenders. Agent shall promptly provide to the Administrative Agent, any Lender hard copies of such documents upon request from the Administrative Agent, consolidating if such Lender does not have access to FIL’s website or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC▇▇▇▇▇.
Appears in 2 contracts
Sources: Credit Agreement (Flextronics International LTD), Credit Agreement (Flextronics International LTD)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet sheet, statement of income and related statements statement of operations, cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Coopers & ▇▇▇▇▇▇▇ or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet sheet, statement of income and related statements statement of operations and cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation promptly after their becoming available, copies of (A) any Permitted Business Acquisitionall financial statements, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to stockholders reports and proxy statements that the Borrower shall have sent to its stockholders generally, and copies of Equity Interests all registration statements filed by the Borrower under the Securities Act of 1933, as amended (other than registration statements on Form S-8 or any registration statement filed in any Person acquired pursuant to connection with a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (Ddividend reinvestment plan), such Group Acquisitionand regular and periodic reports, if any, which the Borrower shall have filed with the Securities and Exchange Commission (or any governmental agency or agencies substituted therefor) exceeds $25.0 millionunder Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended, or upon the reasonable request of the Administrative Agent with any national securities exchange (but not, in the case of such request, more often other than annuallythose on Form 11-K or any successor form), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSignificant Subsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 2 contracts
Sources: Credit Agreement (Raytheon Co), Credit Agreement (Raytheon Co)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 150 days after the end of the fiscal year ending in December 2025 and within 120 days after the end of each fiscal yearyear thereafter, a consolidated balance sheet and related consolidated statements of operations, cash flows and owners’ equity showing the financial position of the Borrower Reporting Entity and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and and, starting with the fiscal year ending in December 2026, setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial year, which consolidated balance sheet and related consolidated statements of the Borrower operations, cash flows and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower owners’ equity shall be accompanied by customary management’s discussion and the Restricted Subsidiaries, on the one hand, analysis and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” qualified as to scope of audit or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope status of such auditthe Borrower or any Material Subsidiary as a going concern on a consolidated basis, other than with respect to, or resulting from, an upcoming maturity date under any series of indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period or the activities, operations, financial results, assets or liabilities of an Unrestricted Subsidiary (but which opinion may, for the avoidance of doubt, contain an explanatory note, emphasis of matter or similar paragraph)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP (it being understood that the delivery by the Reporting Entity of annual reports on Form 10-K (or any successor or comparable form) of the Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 90 days after the end of the fiscal quarters ending in June 2025, September 2025 and March 2026 and within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear thereafter (commencing with the fiscal quarter ending in June 2026), a consolidated balance sheet and related consolidated statements of operations and cash flows showing the financial position of the Borrower Reporting Entity and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and and, starting with the fiscal quarter ending in June 2026, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or year, all of which shall be in lieu of such unaudited financial reasonable detail, which consolidated balance sheet and related consolidated statements of the Borrower operations and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower cash flows shall be accompanied by customary management’s discussion and the Restricted Subsidiaries, on the one hand, analysis and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all shall be certified by Crestwood GP or a Financial Officer of the Borrower, Reporting Entity on behalf of the Borrower, Reporting Entity as fairly presenting, in all material respects, the financial position and results of operations of the Borrower Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Reporting Entity of quarterly reports on Form 10-Q (or any successor or comparable form) of the Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided that, with respect to the Transactions and any acquisition, Investment or similar transaction consummated after the Closing Date, the financial statements delivered pursuant to this clause (b) shall not be required to reflect purchase accounting adjustments relating thereto until the delivery of financial statements under clause (a) above;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) 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, thereto and (ii) setting forth a computation the calculation and uses of the Financial Performance Covenants in detail reasonably satisfactory Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit (other than pursuant to the Administrative Agent and clause (iiia) certifying that the Mortgage Requirement is satisfied at the end of the applicable definition of “Cumulative Credit”) for any purpose during such fiscal period;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiaryproxy statements and, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the extent requested by the Administrative Agent, other materials filed by Holdings (prior to a Qualified IPO of the Borrower), the Borrower or any of Equity Interests in any Person acquired the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of this clause (Dd) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(i), such Group Acquisition) exceeds $25.0 million, or the website of the SEC;
(e) upon the reasonable request of the Administrative Agent (but not, in the case of such request, not more often frequently than annually)once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dclause (e) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c5.10(f);
(ef) promptly, from time to time, (i) such other customary information regarding the operations, business affairs and financial condition of Holdings (prior to a Qualified IPO of the Borrower), the Borrower or any of its Relevant the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, Document that is reasonably available to the Borrower as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); andprovided that in connection with the foregoing, the Borrower will not be required to provide any trade secrets or information to the extent that the provision thereof would violate any law, rule or regulation, contractual obligation, fiduciary duty or any obligation of confidentiality owing to a third party binding on the Borrower or its Affiliates, or waive any attorney-client privilege of the Borrower or its Affiliates; provided that no such obligations of confidentiality shall be entered into in contemplation of this clause (f)(i) and in the event the Borrower does not provide information in reliance on this clause (f)(i), if permitted to do so under such confidentiality obligations the Borrower shall provide notice to the Administrative Agent that such information is being withheld and the Borrower shall use its commercially reasonable efforts to obtain the relevant consents and to communicate, to the extent both feasible and permitted under applicable law, rule, regulation or confidentiality obligation and to the extent such communication would not risk waiver of privilege, the applicable information; and (ii) information and documentation regarding the Borrower and the Guarantors reasonably requested by the Administrative Agent (for itself or on behalf of any Lender) required under applicable “know your customer” requirements under the USA PATRIOT Act or other applicable anti-money laundering laws and the Beneficial Ownership Regulation;
(fg) no later than one hundred the financial statements, information and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; other documents required to be provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (fb) of this Section 5.04 may be satisfied with respect to financial information those of the Borrower Borrower, Holdings or any Parent Entity (any such entity that produces such financial statements, information or other documents, the “Reporting Entity”), so long as in the case of any Parent Entity either (1) such Parent Entity shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partnersits management of, the Borrower or (2) if otherwise, the financial information so delivered shall promptly provide to be accompanied by a reasonably detailed description of the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the quantitative differences between the information relating to Crestwood Equity Partnerssuch Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted its Subsidiaries on a standalone basis, on the other hand; and
(h) no later than 10 Business Days after the delivery of the financial statements required pursuant to clauses (a) and (b) of this Section 5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, the Borrower shall hold a customary conference call for Lenders; provided further that, for so long as the Borrower or any Parent Entity is a public company, no conference call will be required for any fiscal period unless the Borrower or such Parent Entity, as applicable, holds a public earnings call in respect of such fiscal period (and, in that case, the quarterly conference call required pursuant to this paragraph will be held no later than ten Business Days after the extent any date of such documents required public earnings call). The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be delivered pursuant Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 5.04 are included in materials filed with the SEC, such documents shall 9.17 and may be deemed to have been delivered to treated by the Administrative Agent under this Agreement and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on the date such documents are made publicly available by the SECor prior to delivery thereof).
Appears in 2 contracts
Sources: Incremental Assumption and Amendment Agreement (QXO, Inc.), Term Loan Credit Agreement (QXO, Inc.)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information for distribution to the Lenders):each Lender:
(a) within 120 days after the end of each fiscal year, a the consolidated balance sheet and related statements of operationscomprehensive income, changes in stockholders’ equity and cash flows and owners’ equity showing the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and during such fiscal year and the on a consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesbasis, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without subject to (i) a “going concern” or like qualification qualification, exception or emphasis (other than with respect to, or resulting from, (A) an exception or explanatory paragraph upcoming maturity date of any Indebtedness of the Borrower and its Subsidiaries occurring within one year from the time such opinion is delivered, (B) solely with respect to the maturity Term Facility, any actual breach of the Facilities for an opinion delivered financial maintenance covenant set forth in Section 6.10 or, with respect to any Indebtedness, any potential inability to satisfy a financial maintenance covenant on a future date or in a future period or (C) the fiscal year in which such Indebtedness maturesactivities of Unrestricted Subsidiaries) and without any qualification or (ii) a qualification, exception or emphasis as to the scope of such the relevant audit) to the effect that such consolidated financial statements have been prepared in accordance with GAAP and present fairly present, in all material respects, respects the consolidated financial position and consolidated results of operations operations, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, together with comparative figures for the immediately preceding fiscal year, together with a “management discussion and analysis of financial condition and result of operations” in reasonably customary form and substance (it being understood that all of the foregoing information may be furnished in the form of a Form 10-K and only the information required by such Form 10-K shall be required by this Section 5.04(a));
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a the consolidated balance sheet and related statements of operations comprehensive income and change in cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations of the Borrower and its consolidated Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, presenting in all material respects, respects the financial position 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 (it being understood that all of the foregoing information may be furnished in the form of a Form 10-Q and only the absence of footnotesinformation required by such Form 10-Q shall be required by this Section 5.04(b));
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above at a time when there are one or more Unrestricted Subsidiaries, consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower Compliance Certificate (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that demonstrating compliance with the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution financial maintenance covenant contained in Section 6.10 only to the Borrower of Equity Interests extent then in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (oreffect and, in the case of clause a certificate delivered with the financial statements required by paragraph (Da) above with respect to a fiscal year ending on or after December 31, 2019, setting forth the Borrower’s calculation of Excess Cash Flow;
(e) prior to the consummation of a Qualified Public Offering, within 90 days after the end of each fiscal year of the Borrower (beginning with the fiscal year ending December 31, 2018), a detailed consolidated budget for the then-current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such Group Acquisitionthen-current fiscal year and setting forth the assumptions used for purposes of preparing such budget) exceeds $25.0 millionand, promptly when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any other Subsidiary with the Securities and Exchange Commission, or upon any Governmental Authority succeeding to any or all of the functions of the Securities and Exchange Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(g) promptly after the receipt thereof by Holdings, the Borrower or any other Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto;
(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;
(i) promptly after the reasonable request of by the Administrative Agent or any Lender, copies of (but noti) any documents described in Section 101(k)(1) of ERISA that Holdings, in the case Borrower, the other Restricted Subsidiaries or any of such request, more often than annually), an updated Perfection Certificate (or, their ERISA Affiliates may request with respect to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) any Multiemployer Plan and (ii) concurrently any notices described in Section 101(l)(1) of ERISA that Holdings, the Borrower, the other Restricted Subsidiaries or any of their ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if Holdings, the delivery Borrower, the other Restricted Subsidiaries or any of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer their ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the Borrower certifying compliance with Section 5.02(c) applicable Multiemployer Plan, Holdings, the Borrower, the other Restricted Subsidiaries or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and providing evidence shall provide copies of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);documents and notices promptly after receipt thereof; and
(ej) promptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Relevant Subsidiariesother Restricted Subsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsand (ii) information and documentation necessary for purposes of compliance with the Beneficial Ownership Regulation, in each case, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to acting through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents may reasonably request. Information required to be delivered pursuant to this Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on SyndTrak, IntraLinks or a similar site to which the Lenders have been granted access; provided that upon written request by the Administrative Agent, Holdings shall deliver paper copies of such documents to the Administrative Agent under this Agreement on the date such documents are made publicly available for further distribution to each Lender until a written request to cease delivering paper copies is given by the SECAdministrative Agent. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
Appears in 2 contracts
Sources: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ ' equity showing the financial position of the Borrower and its Subsidiaries and, if different, the U.S. Borrower and the Restricted Subsidiaries, in each case Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the U.S. Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAPGAAP (it being understood that the delivery by the U.S. Borrower of Annual Reports on Form 10-K of the U.S. Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04
(a) to the extent such Annual Reports include the information specified herein); provided that, in the event that (i) either Holdings or Intermediate Holdings becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and (ii) Holdings or Intermediate Holdings, as applicable, is not engaged in any business or business activity other than that which is expressly permitted under Section 6.08, this clause may be satisfied by the provision of consolidated financial statements of Holdings or Intermediate Holdings, as applicable, in a manner consistent with the other requirements of this clause, and all references to the U.S. Borrower in this clause shall instead be deemed to be references to Holdings or Intermediate Holdings, as applicable;
(b) within 60 45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the U.S. Borrower and the Restricted Subsidiaries, in each case Subsidiaries 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the U.S. Borrower, on behalf of the U.S. Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the U.S. Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of footnotes and except that purchase accounting may be reflected on a preliminary basis in financial statements under delivered for the fiscal quarters ending in 2003) (a) or (b) above, a certificate it being understood that the delivery by the U.S. Borrower of Crestwood GP or a Financial Officer Quarterly Reports on Form 10-Q of the U.S. Borrower (iand its consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b) 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to Quarterly Reports include the information specified information contained herein); provided that, in the Perfection Certificate, such informationevent that (i) reflecting all changes since either Holdings or Intermediate Holdings becomes subject to the date reporting requirements of Section 13 or 15(d) of the information most recently received pursuant to Section 4.02(e)Securities Exchange Act of 1934, this Section 5.04(d) or Section 5.10(e) as amended, and (ii) concurrently with the delivery of financial statements Holdings or Intermediate Holdings, as applicable, is not engaged in any business or business activity other than that which is expressly permitted under Section 5.04(a)6.08, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 clause may be satisfied with respect to financial information by the provision of the Borrower and the Restricted Subsidiaries by furnishing the applicable consolidated financial statements of Crestwood Equity Partners; provided that Holdings or Intermediate Holdings, as applicable, in a manner consistent with the other requirements of this clause, and all references to the extent such information relates to Crestwood Equity Partners, the U.S. Borrower in this clause shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall instead be deemed to have been delivered be references to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.Holdings or Intermediate Holdings, as applicable;
Appears in 2 contracts
Sources: Credit Agreement (TRW Automotive Holdings Corp), Credit Agreement (TRW Automotive Holdings Corp)
Financial Statements, Reports, etc. Furnish The Company shall furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):each holder of Notes:
(a) within not later than the earlier of (i) 120 days after the end of each fiscal yearyear of the Company and (ii) the date on which such corresponding financial statements are delivered under any Material Credit Facility, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close end of such fiscal year and the related consolidated results statements of their operations during income, retained earnings and cash flows for such year and fiscal year, setting forth in each case in comparative form the corresponding figures for the prior previous fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except in reasonable detail, prepared in accordance with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent GAAP, and accompanied by an opinion of such accountants thereon (which opinion shall be without a “going concern” or like similar qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of the audit on which such auditopinion is based) to the effect of independent public accountants of recognized national standing, which opinion shall state that such consolidated financial statements fairly presentpresent fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of the Borrower and its Subsidiaries on a consolidated basis such accountants in connection with such financial statements has been made in accordance with GAAPgenerally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances;
(b) within 60 not later than the earlier of (i) 75 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Company and (ii) the date on which such corresponding financial statements are delivered under any Material Credit Facility, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close end of such fiscal quarter and the related consolidated results statements of their operations during income for such fiscal quarter and quarter, for the then-elapsed portion of the Company’s fiscal year ended at the end of such quarter, and the related consolidated statement of cash flows for the portion of the Company’s fiscal year ended at the end of such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of date in the prior fiscal previous year (or and period to the extent required in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)Form 10-Q, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes)) as to fairness of presentation, GAAP and consistency by a Senior Financial Officer of the Company;
(c) concurrently simultaneously with any delivery of each set of financial statements under referred to in subsections (a) or and (b) above, a certificate of Crestwood GP or a Senior Financial Officer of the Borrower Company (i) certifying that no setting forth in reasonable detail the calculations required to establish whether the Company was in compliance with the covenant contained in Section 8.6 on the date of such financial statements, and (ii) stating whether any Default or Event of Default or Default has occurred orexists on the date of such certificate and, if such an any Default or Event of Default or Default has occurredthen exists, specifying setting forth the nature and extent details thereof and any corrective the action taken that the Company is taking or proposed proposes to be taken take with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) forthwith upon becoming aware of the consummation of (A) any Permitted Business Acquisition, (B) the acquisition occurrence of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary Default or (D) the contribution to the Borrower Event of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a)Default, a certificate executed by of a Responsible Senior Financial Officer of the Borrower certifying compliance Company setting forth the details thereof and the action that the Company is taking or proposes to take with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)respect thereto;
(e) promptlypromptly upon the filing thereof, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day copies of each fiscal year of the Borrower, final prospectus (other than a budget for such fiscal year prospectus included in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (any registration statement on Form S-8 or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied its equivalent or with respect to financial information of a dividend reinvestment plan) and all reports on Forms 10-K, 10-Q and 8-K and similar reports that the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower Company shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials have filed with the SECCommission, such documents shall be deemed or any Governmental Authority succeeding to have been delivered to any of or all the Administrative Agent under this Agreement on functions of the date such documents are made publicly available by the SEC.Commission;
Appears in 2 contracts
Sources: Note Purchase Agreement (Oncor Electric Delivery Co LLC), Note Purchase Agreement (Oncor Electric Delivery Co LLC)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) as soon as available, but in any event within 120 one hundred twenty (120) days after the end of each fiscal yearyear of FINV, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower FINV and its Subsidiaries and, if different, (including the Borrower and the Restricted Subsidiaries, in each case Borrower) as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent accountants of recognized national international standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower FINV and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) as soon as available, but in any event within 60 forty-five (45) days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal yearFINV, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower FINV and its Subsidiaries and, if different, (including the Borrower and the Restricted Subsidiaries, in each case Borrower) 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower FINV and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iiiy) certifying that concurrently with any delivery of financial statements under (a) above, a certificate of its independent accounting firm stating whether they obtained knowledge during the Mortgage Requirement is satisfied at the end course of the applicable fiscal periodtheir examination of such statements of any Default or Event of Default under Section 6.10 or 6.11 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates to specified information contained in requested by the Perfection CertificateAdministrative Agent, such information) reflecting all changes since other materials filed by the date Borrower or any of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently its Subsidiaries with the delivery of financial statements under Section 5.04(a)SEC, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) or distributed to its equityholders generally, if and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)as applicable;
(e) as soon as available, but in any event within thirty (30) days after the end of each fiscal year of FINV, a summary report as of the end of the prior fiscal year of FINV substantially in the form of the 2012 Summary Guarantor Group report delivered to the Agent and Lenders prior to the Closing Date, showing for each Guarantor on a stand alone basis its tangible assets and EBITDA and the percentage of Consolidated Tangible Assets owned by, and the contribution to EBITDA of, the Guarantors collectively;
(f) promptly, a copy of all reports submitted to the governing body (or any committee thereof) of the Borrower or any of its Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of the Borrower or any of its Subsidiaries;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service 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 a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(fi) no later than one hundred and twenty (120) 90 days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) Borrower and (f) of its consolidated Subsidiaries. Documents required to be delivered pursuant this Section 5.04 may be satisfied with respect to financial information delivered electronically and, in the case of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents Sections 5.04(d) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents, (i) shall have been posted or provided a link to on FINV’s website on the Internet at the website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/, (ii) shall be available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or (iii) shall have been posted on FINV’s behalf on SyndTrak or another website, if any, to which each Lender and the Administrative Agent under this Agreement on the date such documents are made publicly available have access (whether a commercial, third-party website or whether sponsored by the SECAdministrative Agent).
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (Frank's International N.V.), Revolving Credit Agreement (Frank's International N.V.)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 days after the end of each fiscal year, commencing with the fiscal year ending December 31, 2024, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of Holdings, the Borrower and its Restricted Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form (to the extent applicable and, in any event, without requiring restatements for discontinued operations) the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by KPMG LLP or such other independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification qualified in any material respect (other than an exception or explanatory paragraph with respect to resulting from (x) the impending maturity of the Facilities for an opinion delivered any Indebtedness or (y) any actual or prospective breach of any financial covenant contained in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditIndebtedness)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of Holdings, the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ending March 31, 2025, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of Holdings, the Borrower and its Restricted Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form (to the extent applicable and, in any event, without requiring restatements for discontinued operations) the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the BorrowerHoldings, on behalf of the BorrowerHoldings, as fairly presenting, in all material respects, the financial position and results of operations of Holdings, the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (aSections 5.04(a) or (b) aboveand 5.04(b), a certificate of Crestwood GP or a Financial Officer of Holdings substantially in the Borrower (i) certifying that no Event form 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) Exhibit N setting forth a computation computations of the Financial Performance Covenants then in detail reasonably satisfactory to the Administrative Agent effect and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal Excess Cash Flow for such period;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates to specified information contained in requested by the Perfection CertificateAdministrative Agent, such information) reflecting all changes since other materials filed by Holdings, the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) Borrower and (ii) concurrently its Restricted Subsidiaries with the delivery of financial statements under Section 5.04(a)SEC, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) or after an initial public offering, distributed to its stockholders generally, if and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)as applicable;
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, Restricted Subsidiaries or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); andrequest;
(f) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service 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 a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;
(g) no later than one hundred and twenty (120) 120 days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower;
(h) [Reserved]; provided thatand
(i) not more than once per fiscal quarter, if within 10 Business Days following the Holding Company Condition is satisfied as delivery of the date of the relevant financial statements under Sections 5.04(a) and 5.04(b) (or in such later date as agreed with the case of a budget on the first day of the applicable fiscal yearAdministrative Agent), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide host a call for the Lenders to discuss the Administrative Agentperformance of Holdings, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the its Restricted Subsidiaries on a standalone basis, on during the other hand; provided further that to last fiscal quarter of the extent any period covered by such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECfinancial statements.
Appears in 2 contracts
Sources: Credit Agreement (Plains All American Pipeline Lp), Credit Agreement (Plains Gp Holdings Lp)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operations, cash flows and ownersstockholders’ equity and cash flows, showing the financial position condition of the Borrower Holdings and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Ernst & Young LLP or other independent accountants auditors of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a not contain any material qualification or exception (other than “going concern” qualifications or like qualification (other than an exception or explanatory paragraph exceptions relating to the Bankruptcy Proceedings in such opinion with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditended December 31, 2009) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position condition and results of operations of the Borrower Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet and related statements of operations operations, stockholders’ equity and cash flows flows, showing the financial position condition of the Borrower Holdings and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year (it being understood that such information shall be in reasonable detail and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Holdings as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotesnotes);
(c) within 30 days after the commencement of, and within 30 days after the end of each calendar month ending during, a Compliance Period, the monthly unaudited consolidated balance sheet and related consolidated statement of income of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP for such period, subject to normal year-end audit adjustments and the absence of notes, together with a summary list of Capital Expenditures and a calculation of Consolidated EBITDA for such calendar month, in each case, certified by a Financial Officer of Holdings as being prepared on a consistent basis with its accounting and bookkeeping practices;
(d) (i) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a compliance certificate in the form of Crestwood GP or Exhibit G signed by a Financial Officer of the Borrower Holdings and on behalf of Holdings (iA) certifying that that, after reasonable inquiry, to the knowledge of such Financial Officer no Default or Event of Default or Default has occurred or, if such a Default or 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, (iiB) demonstrating compliance with the covenants contained in Sections 10.01, 10.02, 10.03, 10.04, 10.06, 10.09 and 10.16 (setting forth a computation forth, for the purposes of such certificate, calculations of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent Consolidated Fixed Charge Coverage Ratio for such period irrespective of whether a Compliance Period exists at such time) and (iiiC) certifying that no Material Subsidiary exists (other than the Mortgage Requirement is satisfied Loan Parties) or if a Material Subsidiary (other than a Loan Party) does exist, a description of such Material Subsidiary, in each case at the end of the applicable such fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisitionquarter or year, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.
Appears in 2 contracts
Sources: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Financial Statements, Reports, etc. Furnish The Borrower shall furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 days after the end of any Fiscal Year ending after the Closing Date (or, in the case of any Fiscal Year in which a Permitted Business Acquisition with total consideration of $250,000,000 or more has been consummated by the Borrower or any Subsidiary, 150 days after the end of such Fiscal Year), in each fiscal yearas such date may be extended by up to 45 days by the Administrative Agent in its reasonable discretion or, if later, and solely to the extent that the Borrower or any Parent Entity is subject to the Exchange Act’s reporting requirements, the date on which the SEC, pursuant to its rules and regulations, has permitted the Borrower or such Parent Entity to file its applicable annual report on Form 10-K, a copy of the audited consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its consolidated Subsidiaries and(including, if differentfor purposes of this Section 5.04(a), the Borrower Securitization Entities to the extent consolidated in accordance with GAAP) as at the end of such Fiscal Year and the Restricted Subsidiariesrelated audited consolidated statements of comprehensive income (loss), member(s)’ equity (deficit) and cash flows for such year, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (previous year, reported by ▇▇▇▇▇ & ▇▇▇▇▇ LLP or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent certified public accountants of nationally recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion report shall not be without subject to a “going concern” or like scope of audit qualification (other than except for any such qualification pertaining to, or disclosure of an exception or qualification resulting from, the maturity (or impending maturity) of any Facility or any other Indebtedness, any breach or anticipated breach of any financial covenant or the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary or any Securitization Entity), but may include a “going concern” or “emphasis of matter” explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditlike statement) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each Fiscal Year (or, in the case of any fiscal yearquarter (and the two immediately succeeding fiscal quarters) in which a Permitted Business Acquisition with total consideration of $250,000,000 or more has been consummated by the Borrower or any Subsidiary, 90 days after the end of each such fiscal quarter), commencing with the fiscal quarter ending June 30, 2024, in each case as such date may be extended by up to 45 days by the Administrative Agent in its reasonable discretion or, if later, and solely to the extent that the Borrower or any Parent Entity is subject to the Exchange Act’s reporting requirements, the date on which the SEC, pursuant to its rules and regulations, has permitted the Borrower or such Parent Entity to file its applicable annual report on Form 10-Q, a copy of the unaudited consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its consolidated Subsidiaries and(including, if differentfor purposes of this Section 5.04(b), the Borrower Securitization Entities to the extent consolidated in accordance with GAAP) as at the end of such quarter and the Restricted Subsidiariesrelated unaudited consolidated statements of comprehensive income (loss) and of cash flows for such quarter and the portion of the Fiscal Year through the end of such quarter, setting forth in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiariesprevious year, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, presenting in all material respects, respects the financial position and results of operations operation of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with within five Business Days after any delivery of financial statements under clause (a) or (b) above, (A) a certificate of Crestwood GP or a Financial Officer of the Borrower Compliance Certificate (i) certifying that to the knowledge of the certifying Responsible Officer, no Default or Event of Default or Default has occurred and is continuing since the date of the last Compliance Certificate delivered pursuant to this Section 5.04(c) or, if such a Default or an Event of Default or Default has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at commencing with the end of the applicable second full fiscal periodquarter ending after the Closing Date, if the Testing Condition is satisfied, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant (only to the extent applicable) and (B) a customary management discussion and analysis of operating results;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates to specified information contained requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC (or equivalent regulatory body in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(erelevant jurisdiction), this Section 5.04(d) or Section 5.10(e) after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.02(c5.04(h)) or become publicly available via ▇▇▇▇▇, the SEC website (or website of any equivalent regulatory body in the relevant jurisdiction) or another publicly available reporting service;
(e) promptlyprior to the consummation of any Qualified IPO, concurrently with any delivery of financial statements under clause (a) above (or such later date as the Administrative Agent may agree in its reasonable discretion), commencing with delivery of the financial statements for the Fiscal Year ending December 31, 2024, a consolidated annual budget for the Fiscal Year following the Fiscal Year covered by such financial statements in a form customarily prepared by Holdings (collectively, the “Budget”); and
(f) promptly from time to time, such other customary information regarding the operations, business affairs and financial condition condition, or “know your customer” information of Holdings, the Borrower or any of its Relevant the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following to the first day of each fiscal year of the Borrower, a budget for extent such fiscal year in form customarily prepared by information is reasonably available to the Borrower; provided thatprovided, if however, that none of Holdings, the Holding Company Condition is satisfied as Borrower or any Subsidiary shall be required to disclose or provide any information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or any of the date Subsidiaries or any of their respective customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by any applicable Requirement of Law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any Subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered into solely in contemplation of the relevant requirements of this proviso). The Borrower hereby acknowledges and agrees that all financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in furnished pursuant to clauses (a), (b) and (fd) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof). For the avoidance of doubt, for purposes of this Section 5.04, financial statements and similar financial reporting on a consolidated basis will include the Borrower and each of its Securitization Entities, and may include any or all of the Borrower’s Unrestricted Subsidiaries, in each case to the extent consolidated in accordance with GAAP. If at any time the annual and quarterly financial information required by Section 5.04(a) or Section 5.04(b) includes the accounts of any Unrestricted Subsidiary of the Borrower, then such financial information shall, if the accounts of such Unrestricted Subsidiaries are, taken as a whole, material (as determined by the Borrower in good faith), be accompanied by either (i) a reasonably detailed summary of the adjustments necessary to eliminate the accounts of such Unrestricted Subsidiaries or (ii) stand-alone unaudited financial statements of such Unrestricted Subsidiary or Unrestricted Subsidiaries (as a group or otherwise), together with an unaudited reconciliation to the financial information of the Borrower and its Subsidiaries (or any Parent Entity in accordance with the succeeding paragraph), which reconciliation shall include the following items: revenue, finance costs, profit/loss for the period, cash and cash equivalents, total assets, total liabilities, equity and capital expenditures. Notwithstanding the foregoing (but subject to the immediately preceding paragraph), the obligations in paragraphs (a), (b), (c) and (e) of this Section 5.04 may instead be satisfied with respect to any financial information statements of the Borrower and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of Crestwood Equity Partnersany Parent Entity or (B) the Borrower’s or any Parent Entity’s Form 10-K or 10-Q (or similar filing on Form 20-F and/or Form 6-K), as applicable, filed with the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs and without any requirement to provide notice of such filing to any Person; provided that, with respect to each of clauses (A) and (B), (i) if (1) such financial statements relate to any Parent Entity and (2) such Parent Entity (or any other Parent Entity that to the extent is a subsidiary of such information relates to Crestwood Equity Partners, Parent Entity) has any material operations (as determined by the Borrower in good faith and other than any operations that are attributable to such Parent Entity’s ownership of the Borrower and its Subsidiaries), such financial statements or the Form 10-K or Form 10-Q (or similar filing on Form 20-F and/or Form 6-K), as applicable, shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, be accompanied by consolidating or other information (which need not be audited) that explains summarizes in reasonable detail the differences between the information relating to Crestwood Equity Partnerssuch Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted its consolidated Subsidiaries on a standalone basis, on the other hand; provided further that , which consolidating information shall be certified by a Responsible Officer of the Borrower as having been fairly presented in all material respects and (ii) to the extent any such documents statements are in lieu of statements required to be provided under paragraph (a), such statements shall be accompanied by an audit report that would satisfy the applicable requirements set forth in paragraph (a) as if the references to the Borrower therein were references to such Parent Entity. Notwithstanding the foregoing, no financial statement required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents paragraph (a) or (b) shall be deemed required to have been delivered include acquisition or purchase accounting adjustments relating to the Administrative Agent under this Agreement on the date such documents are made publicly available Transactions, any Permitted Business Acquisition or other Investment or any other transaction not prohibited by the SECLoan Documents to the extent it is not practicable or convenient to include any such adjustments in such financial statement.
Appears in 2 contracts
Sources: Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.), Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.)
Financial Statements, Reports, etc. Furnish In the case of Parent, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 90 days (or within 5 days after any shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, a its consolidated balance sheet sheets and related statements of operations, stockholders’ equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower Parent and the Restricted Subsidiaries, in each case consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by KPMG LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of Parent and the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days (or within 5 days after any shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q), after the end of each of the first three fiscal quarters of each fiscal year, a year its consolidated balance sheet sheets and related statements of operations operations, stockholders’ equity and cash flows showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower Parent and the Restricted Subsidiaries, in each case consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Parent and the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) Reserved;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate Compliance Certificate of Crestwood GP or a Financial Officer of the Borrower Officer, substantially as set forth in Exhibit E, (i) opining on or certifying such statements and 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, thereto and (ii) setting forth a computation (A)(w) the amount of Net Cash Proceeds received from each Asset Sale, the Financial Performance Covenants in detail reasonably satisfactory Net Cash Proceeds from which are to be applied to acquire Reinvestment Assets pursuant to Section 2.07(b), (x) the Administrative Agent date of such Asset Sale, (y) the amount of such Net Cash Proceeds applied to acquire Reinvestment Assets during such period and the nature of such Reinvestment Assets (if any) and (iiiz) certifying that the Mortgage Requirement is satisfied at amount of such Net Cash Proceeds required to be applied to reduce the end Loans and cash collaterize the Letters of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business AcquisitionCredit as set forth in Section 2.07(b), (BB)(x) the acquisition amount of any Relevant SubsidiaryNet Cash Proceeds received from each equity issuance or capital contribution, (y) the date of such equity issuance or capital contribution and (z) the amount of such Net Cash Proceeds required to be applied to reduce the Loans and cash collateralize the Letters of Credit as set forth in Section 2.07(b) and (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying reasonably detailed calculations demonstrating compliance with Section 5.02(c) Sections 6.10, 6.11, 6.12 and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)6.13;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Parent or any Subsidiary with the SEC, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(f) not later than March 31 of each year, projections prepared by the management of Parent of statements concerning selected financial data (consisting of net sales, earnings before interest and taxes, working capital items, capital expenditures and depreciation), balance sheets, income statements and cash flow statements, on a quarterly basis, for such fiscal year; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Parent, any Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 2 contracts
Sources: Credit Agreement (Dennys Corp), Credit Agreement (Dennys Corp)
Financial Statements, Reports, etc. Furnish The Borrower shall deliver or cause to be delivered to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other Not later than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal yearFiscal Year, a consolidated balance sheet and related statements a statement of operations and cash flows showing the financial position income of the Borrower and its Subsidiaries and, if different, the Borrower Consolidated Entities on a consolidated basis and the Restricted Subsidiaries, in each case as a statement 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements cash flow of the Borrower and its Consolidated Entities on a consolidated basis for such calendar quarter and for the Restricted Subsidiariesperiod beginning on the first day of such Fiscal Year and ending on the last day of such quarter (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 8.1), together with statements in comparative form for the corresponding date or period in the preceding Fiscal Year as summarized in the Borrower's Form 10-Q for the corresponding period, and certified as to fairness, accuracy and completeness by the chief executive officer, chief financial officer or Treasurer of the Borrower.
(b) Not later than 100 days after the end of each Fiscal Year, financial statements (including a balance sheet, a detailed reconciliationstatement of income, reflecting such financial information for a statement of changes in shareholders' equity and a statement of cash flow) of the Borrower and its Consolidated Entities on a consolidated basis for such Fiscal Year (in sufficient detail to indicate the Restricted SubsidiariesBorrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 8.1), on together with statements in comparative form as of the one handend of and for the preceding Fiscal Year as summarized in the Borrower's Form 10-K for the corresponding period, and accompanied by an opinion of certified public accountants acceptable to the Borrower Agent, which opinion shall state in effect that such financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a Consistent Basis, and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if anyC) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as present fairly presenting, in all material respects, the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and Consolidated Entities for the absence of footnotes);periods covered.
(c) concurrently Together with any delivery of the financial statements under required by subsections (a) or and (b) aboveabove a compliance certificate duly executed by the chief executive officer or chief financial officer or Treasurer of the Borrower in the form of Exhibit I ("Compliance Certificate").
(d) Contemporaneously with the distribution thereof to the Borrower's or any Consolidated Entity's stockholders or partners or the filing thereof with the Securities and Exchange Commission, as the case may be, copies of all statements, reports, notices and filings distributed by the Borrower or any Consolidated Entity to its stockholders or partners or filed with the Securities and Exchange Commission (including reports on SEC Forms 10-K, 10-Q and 8-K).
(e) Promptly after the Borrower knows or has reason to know of the occurrence of any "reportable event" under Section 4043 of ERISA applicable to the Borrower or any ERISA Affiliate, a certificate of Crestwood GP the president or a Financial Officer chief financial officer of the Borrower (i) certifying setting forth the details as to such "reportable event" and the action that no Event of Default the Borrower or Default the ERISA Affiliate 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 will take with respect thereto, (ii) setting forth a computation and promptly after the filing or receiving thereof, copies of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent all reports and (iii) certifying notices that the Mortgage Requirement is satisfied at Borrower and each Consolidated Entity files under ERISA with the end Internal Revenue Service or the PBGC or the United States Department of the applicable fiscal period;Labor.
(df) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Promptly after the Borrower or any of its Relevant SubsidiariesConsolidated Entities becomes aware of the commencement thereof, or compliance with the terms notice of any Loan Documentinvestigation, action, suit or such consolidating financial statements, as in each case proceeding before any Governmental Authority involving the Administrative Agent may reasonably request (for itself condemnation or on behalf taking under the power of eminent domain of any Lender); andof its property or the revocation or suspension of any permit, license, certificate of need or other governmental requirement applicable to any Facility.
(fg) no later than one hundred and twenty (120) Within 10 days following the first day of each fiscal year of the Borrowerreceipt by the Borrower or any of its Consolidated Entities, copies of all material deficiency notices, compliance orders or adverse reports issued by any Governmental Authority or accreditation commission having jurisdiction over licensing, accreditation or operation of a budget Facility or by any Governmental Authority or private insurance company pursuant to a provider agreement, which, if not promptly complied with or cured, could result in the suspension or forfeiture of any license, certification or accreditation necessary in order for such fiscal year in form customarily prepared by Facility to carry on its business as then conducted or the Borrower; provided that, if termination of any material insurance or reimbursement program available to such Facility.
(h) Such other information regarding any Facility or the Holding Company Condition is satisfied as of the date of the relevant financial statements (condition or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information operations of the Borrower and or its Consolidated Entities as the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower Agent shall promptly provide to the Administrative Agent, upon reasonably request from the Administrative Agent, consolidating time to time or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent at any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECtime.
Appears in 2 contracts
Sources: Short Term Credit Agreement (Healthsouth Corp), Credit Agreement (Healthsouth Corp)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):for each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operations, shareholders’ equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” explanatory note or like any similar qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet and related statements of operations and cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Borrower as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) aboveof this Section, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Default or Event of Default or Default has occurred or, if such a Default or 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, thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.12 (in the case of a computation certificate delivered with the financial statements required by paragraph (a) of this Section) and 6.13;
(d) within 90 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto;
(g) as soon as practicable and in any event (i) within 10 Business Days after the receipt by the Borrower of the annual valuation report prepared for the ESOP for each fiscal year, commencing with the fiscal year ending September 30, 2009, deliver to the Administrative Agent a copy of such report, and (ii) on the date that is the earlier of (x) 180 days after the date of any acquisition with a purchase price in excess of $20,000,000 or for which the acquired entity shall have 300 or more employees and (y) the second anniversary of the delivery of the most recent repurchase liability study of the Borrower prepared for the ESOP, deliver to the Administrative Agent (with sufficient copies for each of the Lenders) copies of a repurchase liability study of the Borrower prepared for the ESOP as of a recent date, in each case in form and substance reasonably acceptable to the Administrative Agent.
(h) within 45 days after the end of the first and third fiscal quarters of the Borrower, a certificate of a Financial Performance Covenants Officer of the Borrower listing each new Material Contract entered into since the Closing Date;
(i) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in detail order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(j) within 30 days after the end of each of the first two months of each fiscal quarter, its internally prepared summary financial statements, in a form reasonably satisfactory to the Administrative Agent and (iii) certifying that Agent, showing the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of consolidated financial statements under Section 5.04(a), a certificate executed by a Responsible Officer position of the Borrower certifying compliance with Section 5.02(c) and providing evidence the Subsidiaries as of the close of such compliancemonth and the results of operations and the operations of the Subsidiaries for such month and the elapsed portion of the fiscal year, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);and comparative figures for the same periods in the immediately preceding fiscal year; and
(ek) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request or any Lender (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to acting through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC) may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Financial Statements, Reports, etc. Furnish In the case of the Company, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 65 days after the end of each fiscal year, a its consolidated balance sheet sheets and related statements of operationsincome, cash flows and ownerschanges in stockholders’ equity and cash flows, showing the financial position condition of the Borrower Company and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of its Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries Company on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet sheets and related statements of operations income and cash flows flows, showing the financial position condition of the Borrower Company and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of its Subsidiaries during such fiscal quarter and the then-then elapsed portion of the such fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries Company on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.06, 6.07 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.08;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (iother than materials ministerial or administrative in nature) upon filed by it with the consummation Securities and Exchange Commission, or any Governmental Authority succeeding to any of (A) any Permitted Business Acquisitionor all the functions of such Commission, (B) the acquisition of any Relevant Subsidiaryor distributed to its shareholders, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of request. Documents required to be delivered under this Section 5.04 may be satisfied with respect to financial information of the Borrower delivered electronically and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partnersif so delivered, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the earliest date on which such documents are made publicly available by posted on, or a link to such documents is provided on (i) the SECCompany’s website on the internet at ▇▇▇.▇▇▇▇▇▇.▇▇▇, (ii) the website of the U.S. Securities and Exchange Commission or (iii) the Platform.
Appears in 2 contracts
Sources: Credit Agreement (Harsco Corp), Five Year Credit Agreement (Harsco Corp)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 110 days after following the end of the fiscal year ending December 30, 2012, and within 90 days following the end of each fiscal yearyear thereafter, either (at the option of the Borrower) (i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower SF CC and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such year or (ii) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such year (provided that if SF CC or Parent, as the case may be, includes the financial results of any person that is not a Loan Party or a Subsidiary of Borrower Holdco in such financial statements, the Borrower shall also provide a supplement showing consolidating information for Borrower Holdco and its Subsidiaries) and, in each case, starting with the fiscal year ending December 29, 2013, setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial year, which consolidated balance sheet and related statements of the Borrower operations, cash flows and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without qualified as to scope of audit or as to the status of SF CC, Parent or any Material Subsidiary as a “going concern” or like qualification (concern other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which any such Indebtedness matures) and without any qualification or exception as to that is solely with respect to, or resulting solely from, an upcoming maturity date under any Term Facility or the scope of ABL Facility occurring within one year from the time such auditreport is delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower SF CC and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP (it being understood that the delivery of annual reports on Form 10-K of SF CC or Parent and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein) (the applicable financial statements delivered pursuant to this clause (a) being the “Annual Financial Statements”);
(b) within 45 days (except in the case of the first two fiscal quarters for which quarterly financial statements are required to be delivered hereunder, within 60 days after days) following the end of each of the first three fiscal quarters of each fiscal year, (i) either (at the option of the Borrower) (A) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower SF CC and its Subsidiaries and, if different, as of the Borrower close of such fiscal quarter and the Restricted Subsidiariesconsolidated and consolidating results of its operations during such fiscal quarter, in each case or (B) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter (provided that if SF CC or Parent, as the case may be, includes the financial results of any person that is not a Loan Party or a Subsidiary of Borrower Holdco in such financial statements, the Borrower shall also provide a supplement showing consolidating information for Borrower Holdco and its Subsidiaries) and, in each case, the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year year, and (or ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in lieu of such unaudited financial reasonable detail and which consolidated balance sheet and related statements of the Borrower operations and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all cash flows shall be certified by Crestwood GP or a Financial Responsible Officer of the Borrower, Parent on behalf of the Borrower, Parent as fairly presenting, in all material respects, the financial position and results of operations of the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery of quarterly reports on Form 10-Q of SF CC or Parent and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein) (the applicable financial statements delivered pursuant to this clause (b) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”);
(c) concurrently with any delivery of financial statements Required Financial Statements under paragraphs (a) or and (b) aboveof this Section 5.04, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred or, if such an Event of Default or Default has occurredand is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation the calculation and uses of the Financial Performance Covenants in detail reasonably satisfactory to Cumulative Credit for the Administrative Agent and fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period, (iii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the Mortgage Requirement is satisfied at aggregate do not exceed the end limitation set forth in clause (b) of the applicable fiscal perioddefinition of the term “Immaterial Subsidiary” and (iv) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiaryproxy statements and, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the extent requested by the Administrative Agent, other materials filed by SF CC, Parent, the Borrower of Equity Interests in or any Person acquired other Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year, a Group Acquisitionreasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of Parent and the Subsidiaries as of the end of each fiscal quarter for the following fiscal year and annual consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case if be accompanied by the aggregate consideration for statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by such transaction Financial Officer to be reasonable as of the date of delivery thereof;
(or, in the case of clause (D), such Group Acquisitionf) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but notCollateral Agent, in concurrently with the case delivery of such request, more often than annually)the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dparagraph (f) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Parent or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsin each case, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan, (ii) the most recent actuarial valuation report for any Plan, (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower, any other Subsidiary or any ERISA Affiliate, concerning an ERISA Event and (iv) with respect to each Foreign Benefit Plan, any available annual reports, actuarial valuation reports or notices from plan sponsors, plan administrators or any Governmental Authority with respect to such plan; and
(fi) no later than one hundred and twenty promptly following any request therefor by the Administrative Agent (120so long as the following are obtainable using commercially reasonable measures), copies of (i) days following the first day any documents described in Section 101(k)(1) of each fiscal year of ERISA that Parent, the Borrower, a budget for such fiscal year any other Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in form customarily prepared by Section 101(l)(1) of ERISA that Parent, the Borrower, any other Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided thatthat if Parent, if the Holding Company Condition is satisfied as of Borrower, any other Subsidiary or any ERISA Affiliate has not requested such documents or notices from the date of the relevant financial statements (administrator or in the case of a budget on the first day sponsor of the applicable fiscal year)Multiemployer Plan, Parent, the obligations Borrower, such other Subsidiary or such ERISA Affiliate shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; provided that in clauses the event that Parent and/or any Parent Entity, as applicable, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the other Subsidiaries, such consolidated reporting at a Parent Entity’s level in a manner consistent with that described in paragraphs (a), (b) and (fb) of this Section 5.04 may be satisfied with respect to financial information for Parent will satisfy the requirements of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECparagraphs.
Appears in 2 contracts
Sources: Credit Agreement (Smart & Final Stores, Inc.), Credit Agreement (Smart & Final Stores, Inc.)
Financial Statements, Reports, etc. Furnish In the case of the ----------------------------------- Borrower shall furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) within 120 180 days after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operationsincome and changes in financial position, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Lender and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal quarters quarter of each fiscal year (including, without limitation, the year-ending quarter), a its consolidated and consolidating balance sheet sheets and related statements of operations income and cash flows changes in financial position, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent and Lender demonstrating compliance with the covenants contained in Sections 6.9 through 6.13, inclusive; (iiid) certifying that the Mortgage Requirement is satisfied at Within ten (10) days after the end of each month, the applicable fiscal period;
Borrowers shall deliver to Lender (dx) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, borrowing base certificate in the case form of clause Exhibit D hereto (D), such Group Acquisitionthe "Borrowing Base Certificate") exceeds $25.0 million, or upon detailing the reasonable request Borrowers' Eligible Accounts Receivable as of the Administrative Agent last day of such month, and (but noty) an Acquired Practice Obligation report, detailing any Acquired Practice Obligations incurred in the case previous month, each of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) which shall be certified as complete and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer correct on behalf of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such complianceby the chief executive officer, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptlychief financial officer, from time to time, such controller or other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year Authorized Officer of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided thatrespectively. In addition, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect each Borrowing Base Certificate shall have attached to financial information of it an accounts receivable aging report. If the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that fails to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent deliver any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with Borrowing Base Certificate within twenty (20) days after the SECend of such month, such documents then the Borrowing Base shall be deemed to have been delivered to be $0 until such time as the Administrative Agent under this Agreement on the date Borrower delivers such documents are made publicly available by the SECrequired Borrowing Base Certificate.
Appears in 1 contract
Sources: Credit Agreement (Birner Dental Management Services Inc)
Financial Statements, Reports, etc. Furnish Borrower shall furnish to Agent for each Lender (and Agent shall promptly thereupon furnish to each Lender) the Administrative following, each in such form and such detail as Agent (which will promptly furnish such information to the Lenders):shall reasonably request:
(ai) within 120 As soon as available and in no event later than forty-five (45) days after the end last day of each fiscal yearquarter of Borrower, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position copy of the Financial Statements of Borrower and its Borrower’s Subsidiaries and, if different, the Borrower for such quarter and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) to date (prepared on a consolidated and without any qualification or exception as consolidating basis), certified by an Executive Officer of Borrower to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, the financial position and condition, results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet other information reflected therein and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-year end audit adjustments and the possible absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants As soon as available and in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no event later than one one-hundred and twenty (120) days following after the close of each fiscal year of Borrower, (A) copies of the audited consolidated Financial Statements of Borrower and Borrower’s Subsidiaries for such fiscal year, prepared by an accounting firm acceptable to Agent, and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to Agent) and management letters delivered by such accountants in connection with all such Financial Statements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), (A) a certificate of an Executive Officer of Borrower in the form of Exhibit I, appropriately completed (a “Compliance Certificate”) and (B) management’s discussion of Borrower’s operations for the period covered by such Financial Statements, including a comparison with Borrower’s operations for the corresponding quarter in the immediately preceding fiscal year or with the immediately preceding fiscal year, as the case may be, and, if requested by Agent, a budget variance analysis;
(iv) As soon as possible and in no event later than five (5) Business Days after any officer of Borrower knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan; (B) any litigation, suits or claims against Borrower or its Subsidiaries involving potential monetary damages payable by Borrower or any of its Subsidiaries of $1,000,000 or more (alone or in the aggregate) not covered by insurance; (C) any other event or condition which is reasonably likely to have a Material Adverse Effect; or (D) any Default or Event of Default; the statement of an Executive Officer of Borrower setting forth details of such event, condition, Default or Event of Default and the action which Borrower proposes to take with respect thereto;
(v) At least thirty (30) days after the first day of each fiscal year of the Borrower, a the consolidated operating budget of Borrower and its Subsidiaries for such fiscal year year, including quarterly cash flow projections and quarterly projections of Borrower’s compliance with each of the covenants set forth in form customarily prepared Paragraph 5.03;
(vi) Contemporaneously with the quarterly and year-end Financial Statements required by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in foregoing clauses (a), (bi) and (fii), a certificate of an Executive Officer of Borrower which sets forth the amount of any membership interest repurchases from members of Borrower or any distributions paid to members of Borrower during the period covered by such Financial Statements;
(vii) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or Such other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partnerscompliance by Borrower with the terms of the Credit Documents to which it is a party as any Lender through Agent may from time to time reasonably request; and
(viii) Such other certificates, on the one handopinions, statements, documents and the information relating to the operations or condition (financial or otherwise) of Borrower or any of its Subsidiaries, and compliance by Borrower with the terms of this Agreement and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that Credit Documents as any Lender through Agent may from time to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECtime reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which who will promptly furnish such information distribute to the Lenderseach Lender):
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position condition of the US Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Persons during such year, together with, for each fiscal year and setting forth in commencing with the fiscal year ended December 31, 2008, comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except in reasonable detail and prepared in accordance with respect to such reconciliation) GAAP, all audited by KPMG LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position condition and results of operations of the US Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three 3 fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position condition of the US Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Persons during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in for each fiscal quarter occurring after the first anniversary of the Closing Date, comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the US Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) aboveSection 5.04 Financials, a certificate of Crestwood GP or a Financial Officer of the US Borrower (i) certifying that to such Financial Officer’s knowledge, no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurredoccurred and is continuing, reasonably specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation (x) to the extent applicable, computations in reasonable detail of the Financial Performance Covenants in detail reasonably satisfactory to Adjusted Consolidated Leverage Ratio as of the Administrative Agent last day of the fiscal quarter or year, as the case may be, covered by such Section 5.04 Financials and demonstrating compliance with Section 6.10 and (iiiy) certifying that in the Mortgage Requirement is satisfied at case of a certificate delivered with the end financial statements required by paragraph (a) above (commencing with the fiscal year ended December 31, 2008), setting forth the US Borrower’s calculation of the applicable fiscal periodExcess Cash Flow;
(d) (i) upon within 90 days after the consummation commencement of (A) any Permitted Business Acquisitioneach fiscal year of the US Borrower, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration detailed consolidated budget for such transaction (or, in the case fiscal year including a projected consolidated balance sheet and related statements of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request projected operations and cash flows as of the Administrative Agent end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget;
(e) simultaneously with the delivery of the Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, only to the extent such request relates to specified information contained in Unrestricted Subsidiaries would not be considered “minor” under Rule 3-10 of Regulation S-X under the Perfection Certificate, such informationSecurities Act);
(f) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently simultaneously with the delivery of financial statements under the Section 5.04(a)5.04 Financial Statements, a certificate executed by a Responsible Officer management’s discussion and analysis of the important operational and financial developments of the US Borrower certifying compliance with Section 5.02(c) and providing evidence of such complianceits Restricted Subsidiaries during the respect fiscal year or fiscal quarter, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)as the case may be;
(eg) after the request by any Lender (through the Administrative Agent), 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;
(h) promptly, from time to time, such other information regarding the operations, business business, legal or corporate affairs and financial condition of the US Borrower or any of its Relevant SubsidiariesRestricted Subsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request request;
(for itself i) concurrently with the delivery of the certificate delivered pursuant to clause (c) above, the US Borrower shall deliver to the Collateral Agent a certificate executed by a Responsible Officer of the US Borrower attaching updated versions of the Schedules (other than Schedule IV) to each Guarantee and Collateral Agreement or on behalf in the alternative, setting forth any and all changes to (or confirming that there has been no change in) the information set forth in or contemplated by such Schedules since the date of any Lenderthe most recent certificate delivered pursuant to this paragraph (i); and
(fj) no later than one hundred and twenty (120) days following within the first day of time frame set forth in Section 7.02, on each fiscal year of the Borroweroccasion permitted therein, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, Notice of Intent to Cure if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may Cure Right will be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents exercised thereunder. Information required to be delivered pursuant to this Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent under this Agreement on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available on the date such documents are made publicly available website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on the website of the US Borrower. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the SECAdministrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
Appears in 1 contract
Sources: Credit Agreement (Comdata Network, Inc. Of California)
Financial Statements, Reports, etc. Furnish The Borrower will furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) as soon as available, and in any event within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related consolidated statements of operationsoperations and cash flows, cash flows and owners’ equity showing the consolidated financial position of the Borrower and its Consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations and cash flows during such year and year, in each case setting forth in comparative form the corresponding figures for the prior preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or another nationally recognized "Big Six" independent accountants of recognized national standing reasonably acceptable to the Administrative Agent public accounting firm and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) as soon as available, and in any event within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related consolidated statements of operations and cash flows flows, showing the consolidated financial position of the Borrower and its Consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and quarter, the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures consolidated cash flows for the corresponding periods then elapsed portion of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Default or Event of Default or Default has occurred or, if such an a Default or 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower, substantially in the form of Exhibit F hereto, (i) upon setting forth computations in reasonable detail satisfactory to the consummation of (A) any Permitted Business AcquisitionAgent demonstrating compliance with the covenants contained in Sections 6.14 and 6.15, (Bii) stating whether, since the acquisition date of the most recent Required Financial Statements previously delivered, there has been any Relevant Subsidiarymaterial change in the generally accepted accounting principles applied in the preparation of the Borrower's financial statements and, if so, describing such change, (Ciii) any Person becoming a Relevant Subsidiary or (D) the contribution to containing summaries of accounts payable agings, accounts receivable agings, and inventory of the Borrower on a stand-alone basis, (iv) in the case of Equity Interests in any Person acquired pursuant to a Group Acquisitioncertificate delivered concurrently with a certificate under paragraph (a) above, in each case if setting forth the aggregate consideration Excess Cash Flow for such transaction the preceding fiscal 77 83 year (or, in the case of clause the fiscal year ending March 31, 1997, for the period from the Closing Date through March 31, 1997) and a reasonably detailed calculation thereof, (D), such Group Acquisitionv) exceeds $25.0 million, or upon the reasonable request a comparison of the Administrative Agent (but notactual results during the period covered by such financial statements to those originally budgeted by the Borrower prior to the beginning of the applicable fiscal year, along with management's discussion and analysis of variances between such actual and budgeted results, as well as variances between actual results for such period and actual results for the same period in the case previous fiscal year and (vi) a list of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes any significant sales contracts awarded or terminated since the date of the information most recently received pursuant to Section 4.02(e)recent Required Financial Statements previously delivered, this Section 5.04(d) or Section 5.10(e) and including a description thereof in reasonable detail (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of provided that the Borrower certifying compliance with Section 5.02(c) and providing evidence of may disclose orally, rather than in writing, any such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(csales information that the Borrower deems highly sensitive from a competitive standpoint);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and[intentionally omitted.]
(f) no promptly upon completion, but in any event not later than one hundred and twenty (120) 30 days following after the first day commencement of each fiscal year, a copy of projections by the Borrower of its consolidated balance sheet and related consolidated statements of operations and cash flows for such fiscal year of the Borrower, (including all material assumptions to such projections) and a budget for such fiscal year year, all in form customarily prepared by the Borrower; provided that's management, such projected financial statements to be accompanied by a certificate of a Financial Officer to the effect that such projected financial statements have been prepared in good faith, based on assumptions that the Borrower believes to be reasonable and based on the best information available to the Borrower and that such Financial Officer has no reason to believe they are misleading in any material respect in light of the circumstances existing at the time of preparation thereof;
(g) at least five (5) but not more than thirty (30) days prior to any Permitted Acquisition which occurs after the Effective Date, (i) financial statements of the target and its subsidiaries, if any, on a consolidated basis for the Holding Company Condition is satisfied as most recently fiscal year of the date of target (unless the relevant target, by its nature, is an asset that does not customarily prepare financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (astatements), (bii) copies of all other consolidated and consolidating balance sheets (to the extent available) and (f) related statements of this Section 5.04 may be satisfied with respect to financial information operations and statements of cash flows of the target and its subsidiaries if any, acquired in such acquisition, that are to be delivered to the Borrower or any of its subsidiaries in connection with such acquisition, (iii) to the extent then available, copies of all purchase agreements, agreements of merger, letters of intent or other operative agreements entered into by the Borrower or any of its subsidiaries in connection with such acquisition (it being understood and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that agreed that, to the extent such information relates agreements or letters of intent have not been entered into at such time, copies of such agreements and letter of intent shall be delivered reasonably promptly after the execution thereof, and (iv) financial projections covering the period from the date of such Permitted Acquisition through the first anniversary of the acquisition, giving effect to Crestwood Equity Partners, such Permitted Acquisition and demonstrating compliance by the Borrower shall promptly provide to on a pro forma basis with the Administrative Agent, upon request covenants in Article VI from and after the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one handdate of, and the information relating after giving effect to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.Permitted
Appears in 1 contract
Financial Statements, Reports, etc. Furnish The Borrowers will furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Holders:
(a) within 120 90 days after the end of each fiscal year, a the consolidated and consolidating balance sheet sheets and related statements of operations, equityholders' equity and cash flows and owners’ equity flows, showing the financial position condition of the each respective Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect statements to such reconciliation) be audited by an independent accountants public accountant of recognized national or regional standing reasonably acceptable to the Administrative Agent Holders, with the Investor and Holders acknowledging that Ernst & Young LLP is acceptable, and accompanied by an opinion of such accountants accountant (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness maturesany material respect) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the such Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters quarter of each fiscal year, a its consolidated and consolidating balance sheet and related statements of operations operations, equityholders' equity and cash flows showing the financial position condition of the Borrower and its Subsidiaries andeach respective Borrower, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, all certified by its Financial Officer as fairly presenting in all material respects the financial condition and results of operations of the such Borrower in accordance with GAAP (but without footnotes), subject to normal year-end audit adjustments, together with a quarterly management summary description of operations;
(c) within 30 days after the end of each month, (i) its monthly and year-to-date consolidated and consolidating financial statements of each respective Borrower and its Subsidiaries, setting forth in each case in comparative form the corresponding figures for the corresponding periods month and fiscal year-to-date period of the prior preceding fiscal year and the corresponding figures for the corresponding month and fiscal year-to-date period of the annual forecast and (or in lieu ii) a schedule of the outstanding Indebtedness of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis describing in accordance with GAAP (subject to normal year-end audit adjustments reasonable detail each such debt issue or loan outstanding and the absence of footnotes)principal amount with respect to each such debt issue or loan;
(cd) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the applicable Borrower opining on or certifying such statements (iwhich certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) and certifying that to its knowledge 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(de) to the extent that any Borrower becomes subject to such reporting requirements, promptly after the same become publicly available, copies of all final periodic and other reports, proxy statements and other materials filed by such Borrower with the U.S. Securities and Exchange Commission (the "SEC"), or any Governmental Authority succeeding to any or all of the functions of said commission, or with any national securities exchange, or distributed to its Senior Lenders (exclusive of proprietary information unless (i) upon the consummation of (A) any Permitted Business Acquisition, (B) Person that is the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date source of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) report is a public company and (ii) concurrently such Person would then be required to file such proprietary information with the delivery SEC), as the case may be;
(f) within 30 days of filing, copies of all material documents filed by either Borrower with any Governmental Authority, including, without limitation, the U.S. Internal Revenue Service, the U.S. Environmental Protection Agency (and any state equivalent), the U.S. Occupational Safety & Health Administration and the SEC;
(g) promptly upon request by any Holder, copies of all pleadings related to any material action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, by or against any Borrower or any Affiliate thereof;
(h) as soon as practicable, and in any event not later than 30 days prior to commencement of each fiscal year, a copy of the Borrower's annual budget (detailed on a month to month basis) for such fiscal year, in a form consistent with the financial statements under Section 5.04(a)provided hereunder;
(i) within 10 days of receipt, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required notice of default on any loans or leases which default is in excess of $1,000,000, individually or in the aggregate, to be delivered pursuant to Section 5.02(c)which any Borrower is a party;
(ej) promptly after entering into the same, copies of all shareholders or equityholders agreements, material employment agreements and other material agreements of any Borrower or any of its Subsidiaries
(k) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the any Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Investment Document, or such consolidating financial statements, as in each case the Administrative Agent any Holder may reasonably request (for itself or on behalf of including any Lender44 information necessary to enable the Holders to file any form required by any Governmental Authority); and
(fl) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied concurrently with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that delivery to the extent such information relates to Crestwood Equity PartnersSenior Lenders, the Borrower shall promptly provide to the Administrative Agentcopies of all reports, upon request from the Administrative Agent, consolidating certificates or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered provided to the Administrative Agent Senior Lenders under this Agreement on the date such documents are made publicly available by the SECIndenture (including without limitation all notices of default and officer's certificates thereunder).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish The Company shall furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):each Investor:
(a) as soon as available and in any event within 120 thirty (30) days after the end of each fiscal yearmonth, a consolidated and consolidating balance sheet sheets of the Company and related its subsidiaries as of the end of such month and consolidated and consolidating statements of operations, income and of cash flows and owners’ equity showing the financial position of the Borrower Company and its Subsidiaries andsubsidiaries for such month and for the periods commencing at the end of the previous fiscal year and ending with the end of such month, if different, the Borrower and the Restricted Subsidiaries, setting forth in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods period of the prior preceding fiscal year (or in lieu of except that the Company will not be required to commence providing such unaudited comparative financial statements data for the corresponding period of the Borrower preceding fiscal year until January 31, 1999) and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information Budget (as defined herein) for the Borrower and current year, all in reasonable detail, in a format reasonably satisfactory to the Restricted Subsidiaries, on the one handInvestors, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all duly certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and adjustments) by the chief financial officer or principal accounting officer of the Company as having been prepared in accordance with generally accepted accounting principals recognized as such by the American Institute of Certified Public Accountants (except for the absence of footnotes)) and including a discussion by the Company's management of any material variance from the Budget for such fiscal year;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower as soon as available and in any event within one hundred five (i105) 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at days after the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the BorrowerCompany, a budget copy of the annual audit report for such year for the Company and its subsidiaries, including therein consolidated and consolidating balance sheets of the Company and its subsidiaries (or its operating divisions) as of the end of such fiscal year and consolidated and consolidating statements of income and retained earnings and of cash flows of the Company and its subsidiaries for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all duly certified by independent public accountants of recognized national standing acceptable to the Investors;
(c) prior to the end of each fiscal year of the Company, (x) an operating budget (the "BUDGET") of the Company and its subsidiaries for the next fiscal year in the form customarily prepared by the Borrower; provided thatmanagement for internal use, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents which Budget shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.reasonably
Appears in 1 contract
Financial Statements, Reports, etc. Furnish It will furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) as soon as available, but within 120 95 days after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of operations, operations and consolidated statements of shareholders’ equity and cash flows and owners’ equity showing the financial position condition of the Borrower Holdings and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth year, all audited (in comparative form the corresponding figures for the prior fiscal year (or in lieu case of such audited financial statements consolidated and consolidating statements) by any of the Borrower and the Restricted SubsidiariesDeloitte & Touche LLP, a detailed reconciliationKPMG LLP, reflecting such financial information for the Borrower and the Restricted SubsidiariesPricewaterhouseCoopers LLP, on the one handErnst & Young LLP, and the Borrower and the Subsidiaries, on the or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a not contain any “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterially adverse qualification) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries Holdings on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) as soon as available, but within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of operations and consolidated statements of shareholders’ equity and cash flows showing the financial position condition of the Borrower Holdings and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries Holdings on a consolidated basis in accordance with GAAP (consistently applied, subject to the absence of footnotes and normal year-end reserves, accruals and audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.06 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.07;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)paragraph (a) above, a certificate executed by a Responsible Officer of the Borrower accounting firm opining on such statements (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying compliance (i) whether in connection with Section 5.02(cits audit examination any Default or Event of Default has come to its attention and, if such event has come to its attention, the nature and extent thereof and (ii) that based on its audit examination and providing evidence its review of such compliancethe computations referred to in clause (ii) of paragraph (c) above, including without limitation copies of any flood hazard determination forms required nothing has come to be its attention that leads it to believe that the information contained in the certificate delivered therewith pursuant to Section 5.02(c)paragraph (c) above is not correct; provided that the requirements of this clause (d) shall be subject to any limitations and qualifications adopted after the date hereof by any professional association or organization or any Governmental Authority, in each case that affects the content of, or ability of accounting firms to deliver, certificates of the type contemplated by this paragraph;
(e) promptly after the same become publicly available or are filed or distributed, as applicable, copies of all periodic and other material reports, proxy statements and other materials filed by Holdings or the Borrower or any Subsidiary 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, or distributed to the holders of any Indebtedness with a then outstanding principal amount of $15,000,000 or more (or any trustee, agent or representative for any such holders) or to Holdings’ shareholders, as the case may be;
(f) promptly upon the occurrence of any change of rating of the Index Debt by ▇▇▇▇▇’▇ or S&P, a certificate of a Financial Officer setting forth the new rating, the effective date thereof and, if applicable, notice of any change in the Applicable Rate as a result thereof; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings and the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto;
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of by any Lender); and
(f) no later than one hundred , all documentation and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains such Lender reasonably requests in reasonable detail order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the differences between the information relating USA PATRIOT Act. Documents required to Crestwood Equity Partners, on the one hand, and the information relating be delivered pursuant to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that this Section 6.04 (to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, such documents shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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 under this Agreement on or any Lender upon its request to the date Borrower to deliver such documents are made publicly available paper copies until a written request to cease delivering paper copies is given by the SECAdministrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that the Administrative Agent and/or MLPFS will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”).
Appears in 1 contract
Sources: Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 days after the end of each fiscal yearyear starting with the fiscal year ended December 31, 2010, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, starting with the fiscal quarter ended March 31, 2011, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iiiy) certifying that concurrently with any delivery of financial statements under (a) above, a certificate of its independent accounting firm stating whether they obtained knowledge during the Mortgage Requirement is satisfied at the end course of the applicable fiscal periodtheir examination of such statements of any Default or Event of Default under Section 6.10 and 6.11 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other available reports, (B) the acquisition of any Relevant Subsidiaryproxy statements and, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the extent requested by the Administrative Agent, other materials filed by the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if or the aggregate consideration for such transaction (or, in Company with the case of clause (D), such Group Acquisition) exceeds $25.0 millionSEC, or after an initial public offering, distributed to its stockholders generally, if and as applicable;
(e) upon the reasonable request of the Administrative Agent (but not, in the case of such request, not more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dparagraph (e) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c4.02(d);
(ef) promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of the Borrower or the Company in connection with any material interim or special audit made by independent accountants of the books of the Borrower or the Company;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiariesthe Company, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service 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 a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(fi) no No later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 75 days after the end of each fiscal year, a consolidated balance sheet and related consolidated statements of operations, cash flows and ownersstockholders’ equity showing the consolidated financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower GrafTech and the Restricted Subsidiaries, in each case Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of GrafTech and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 40 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related consolidated statements of operations and operations, cash flows and stockholders’ equity showing the consolidated financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower GrafTech and the Restricted Subsidiaries, in each case Subsidiaries 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, GrafTech by one of its Financial Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of GrafTech and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP such accountants or a of GrafTech signed by one of its Financial Officer of the Borrower Officers opining on or certifying (iwhich certificate, when furnished by such accountants, may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying (A) 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, (iiB) setting as to computations which are set forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10 and 6.11 and (iiiC) certifying as to the amount of Available Disposition Proceeds, Equity Proceeds and Foreign Transfers as of the last day of the fiscal period reported on in such financial statements and setting forth computations in detail reasonably satisfactory to the Administrative Agent showing all transactions or other events increasing or decreasing such amounts (it being understood that the Mortgage Requirement is satisfied at the end information required by clauses (B) and (C) may be provided in a certificate of the applicable fiscal periodGrafTech signed by one of its Financial Officers instead of from such accountants);
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates requested by the Administrative Agent, other publicly available materials filed by GrafTech or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to specified information contained any or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in the Perfection Certificate, such informationaccounting principles used for financial reporting by in accordance with Section 1.04(a)(ii) reflecting all changes since or any other change in accounting principles and policies from those as in effect on the date of this Agreement, the information most recently received consolidated financial statements of GrafTech and the Subsidiaries delivered pursuant to Section 4.02(e), this Section 5.04(dparagraph (a) or Section 5.10(e(b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such paragraphs had no such change in accounting principles and (ii) concurrently policies been made, then, together with the first delivery of financial statements under Section 5.04(a)pursuant to paragraph (a) and (b) above following such change, a schedule prepared by GrafTech signed by one of its Financial Officers reconciling such changes to what the financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, a copy of an operating and capital expenditure budget of GrafTech on a consolidated basis for such fiscal year;
(g) promptly following the creation of or the initial acquisition of any equity interest in any Subsidiary, a certificate executed of GrafTech signed by a Responsible Officer of GrafTech identifying such new Subsidiary and the Borrower certifying compliance with Section 5.02(c) ownership interest of GrafTech and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)the Subsidiaries therein;
(eh) within 90 days after the beginning of each fiscal year, and within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, in each case, sooner if available), a balance sheet and related statements of operations, cash flows and stockholder’s equity, for such fiscal year or such fiscal quarter and the fiscal year to date through the end of such fiscal quarter, respectively, for each Unrestricted Subsidiary and for each minority interest in respect of which the Loan Parties shall, directly or indirectly, have an aggregate outstanding Investment in excess of $5,000,000;
(i) promptly, a copy of all final reports submitted in connection with any material interim or material special audit made by independent accountants of the books of GrafTech or any Subsidiary;
(j) within 180 days after the beginning of each fiscal year, the statutory accounts of Swissco for such fiscal year, audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized standing internationally or in Switzerland acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such accounts present the financial condition and results of operations of Swissco in accordance with Swiss auditing standards;
(k) within 120 days after the beginning of each fiscal year, each Borrower shall deliver to the Administrative Agent a bring-down Perfection Certificate of such Borrower signed by one of its Financial Officers setting forth any information required so that the Perfection Certificate(s) delivered under the Security Agreements on the Effective Date shall be complete and correct as of the date of such bring-down Perfection Certificate;
(l) promptly following any request therefor, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA. Patriot Act; and
(m) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower GrafTech or any of its Relevant Subsidiaries, Subsidiary or compliance with the terms of any Loan Document, or such consolidating financial statements, or such financial statements showing the results of operations of any Unrestricted Subsidiary, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to acting through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents may reasonably request. Information required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents 5.04(d) shall be deemed to have been delivered on the date on which GrafTech provides notice to the Administrative Agent under this Agreement that such information has been posted on the date SEC website on the Internet at ▇▇▇.▇▇▇.▇▇▇, or at another website identified in such documents are made publicly available notice and accessible by the SECLenders without charge, provided that such notice may be included in a certificate delivered pursuant to Section 5.04(c).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower and the Guarantors, deliver to the Administrative Agent (which will promptly furnish such information to and each of the DIP Lenders)::
(a) within 120 90 days after the end of each fiscal year, a the Borrower's consolidated balance sheet and related statements statement of operationsincome and cash flows, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries andon a consolidated basis, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form year, the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements consolidated statement of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information to be audited for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the its Subsidiaries by Arthur Andersen or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably or recogniz▇▇ ▇▇▇i▇▇▇▇ ▇▇▇nding acceptable to the Administrative Agent Required DIP Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified in any material respect other than an exception or explanatory paragraph with respect to the maturity Cases) and to be certified by a Financial Officer of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) Borrower to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position condition and results of operations of the Borrower and its 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, the Borrower's consolidated balance sheets and related statements of income and cash flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to the absence of footnotes and normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) aboveabove as applicable, (i) a certificate of Crestwood GP or a Financial Officer of the Borrower (iA) certifying that no Event of Default or event that upon notice or lapse of time or both would constitute an Event of Default has occurred occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (B) setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the provisions of Sections 6.04, 6.05 and 6.10 and (ii) setting forth a computation certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of such accountants accompanying the audited consolidated financial statements delivered under (a) above certifying that, in the course of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end regular audit of the applicable fiscal periodbusiness of the Borrower and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and its continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than 45 days after the end of each month, the unaudited monthly cash flow reports of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year, all certified by a Financial Officer as fairly presenting in all material respects the results of operations of the Borrower and the Guarantors on a consolidated basis, subject to the absence of footnotes and normal year-end audit adjustments;
(e) within five Business Days of the first of each month, a statement of projected cash receipts and cash disbursements for each of the Borrower and the Low Leverage Guarantors, as a group and High Leverage Guarantors as a group, respectively, for each month in the period of six continuous months commencing with that month in a form reasonably satisfactory to the Agent;
(f) weekly "cash flow" reports in a form reasonably satisfactory to the Agent (which shall include a summary of all outstanding loans or advances made in reliance on Section 6.10(vi));
(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 Securities and Exchange Commission, or any governmental authority succeeding to any of or all of the functions of said commission, or with any national securities exchange, as the case may be;
(h) as soon as available and in any event (A) within 30 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any Termination Event described in clause (i) upon of the consummation definition of Termination Event with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate has occurred and (B) within 10 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such Plan has occurred, a statement of a Financial Officer of the Borrower describing such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within 10 days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(j) if requested by the Agent, promptly, and in any event within 30 days after the filing thereof, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of the borrower or any of its ERISA Affiliates;
(k) within 10 days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Financial Officer of the Borrower setting forth (A) any Permitted Business Acquisitionsufficient information necessary to determine the amount of the lien under Section 302(f)(3), (B) the acquisition reason for the failure to make the required payments and (C) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(l) promptly and in any Relevant Subsidiaryevent within 10 days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) any Person becoming the termination of a Relevant Subsidiary Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the contribution to amount of liability incurred, or which may be incurred, by the Borrower of Equity Interests or any ERISA Affiliate in connection with any Person acquired pursuant to a Group Acquisition, event described in each case if the aggregate consideration for such transaction (or, in the case of clause (DA), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dB) or Section 5.10(e(C) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)above;
(em) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesGuarantor, or compliance with the terms of any Loan Documentmaterial loan or financing agreements as the Agent, or such consolidating financial statementsat the request of any DIP Lender, as in each case the Administrative Agent may reasonably request request;
(for itself n) promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Borrower or any Lender)of the Guarantors with the Bankruptcy Court in the Cases, or distributed by or on behalf of the Borrower or any of the Guarantors to any official committee appointed in the Cases, providing copies of same to counsel for the Agent, except if such distribution would destroy attorney-client privilege; and
(fo) no later than one hundred and twenty (120) days following the first 35 th day after the end of each fiscal year calender month of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as reconciliation of the date results of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information business operations of the Borrower and the Restricted Subsidiaries by furnishing Low Leverage Guarantors (as a group) and the applicable financial statements of Crestwood Equity Partners; provided that High Leverage Guarantors (as a group) for such fiscal calender month as compared to the extent such information relates to Crestwood Equity Partnerscorresponding period in the Budget (clearly distinguishing between Low Leverage, the Borrower shall promptly provide to the Administrative Agentas a group and High Leverage Guarantors, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on as a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECgroup).
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Lodgian Inc)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) as soon as available and in any event within 120 days after the end of each fiscal year, a (i) consolidated balance sheet sheets and the related statements of operations, income and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and (which requirement shall be deemed satisfied by the consolidated results delivery of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year Annual Report on Form 10-K (or in lieu of any successor form) for such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if anyyear) from such consolidated financial statements), all (except with respect to such reconciliation) which have been audited by KPMG Peat Marwick or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;GAAP consistently applied.
(b) within 60 65 days after the end of each of the first three fiscal quarters of each fiscal year, a (i) consolidated balance sheet sheets and related statements of operations income and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form (which requirement shall be deemed satisfied by the corresponding figures for the corresponding periods delivery of the prior fiscal year Borrower's Quarterly Report on Form 10-Q (or in lieu of any successor form) for such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statementsquarter), all each certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);adjustments.
(c) concurrently promptly upon the mailing or filing thereof copies of all financial statements, reports and proxy statements mailed to the Borrower's public shareholders, and copies of all registration statements (other than those on Form S-8) and Form 8-K's (to the extent that such Form 8-K's disclose actual or potential adverse developments with respect to the Borrower or could reasonably be anticipated to constitute a Material Adverse Effect) filed with the Commission (or any delivery of financial statements under (asuccessor thereto) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal periodnational securities exchange;
(d) promptly after (i) upon the consummation of (A) any Permitted Business Acquisitionoccurrence thereof, (B) the acquisition notice of any Relevant SubsidiaryERISA Termination Event or "prohibited transaction", (C) as such terms are de- fined in Section 4975 of the Code, with respect to any Person becoming a Relevant Subsidiary Plan that results, or (D) the contribution could reasonably be anticipated to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionresult, in each case if a Material Adverse Effect, which notice shall specify the aggregate consideration for such transaction (ornature thereof and the Borrower's proposed response thereto, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation actual copies of any flood hazard determination forms required notice of Pension Benefit Guaranty Corporation's (PBGC) intention to be delivered pursuant terminate or to Section 5.02(c);have a trustee appointed to administer any Plan; and
(e) promptly, from time to time, such other information information, regarding the its operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiariescondition, or compliance with the terms of any this Loan Document, or such consolidating financial statementsAgreement, as in each case the Administrative Agent Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower and the Guarantors, deliver to the Administrative Agent (which will promptly furnish such information to and each of the Lenders)::
(a) within 120 ninety (90) days after Borrower's receipt of a request therefor from the end of each fiscal yearAgent, a consolidated the Borrower'▇ ▇▇▇▇▇lidated balance sheet and related statements statement of operationsincome and cash flows, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case Guarantors on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form year, the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements consolidated statement of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information to be audited for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the Guarantors by Deloitte Touche LLP or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified in any material respect other than an exception or explanatory paragraph with respect to the maturity Cases or a going concern qualification) and to be certified by a Financial Officer of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) Borrower to the effect that such consolidated financial statements fairly presentpresent the financial condition and results of operations of the Borrower and the Guarantors on a consolidated basis in accordance with GAAP; provided that the foregoing audit shall not be required if the Agent shall determine, in all material respectsits sole discretion not to approve the expenditure therefor in the Budget as set forth in Section 2.02(a) above.
(b) within twenty-five (25) days after the end of each month, the Borrower's consolidated balance sheets and related statements of income and cash flows, showing the financial position condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such month and the results of their operations during such month and the then elapsed portion of the fiscal year, each certified by a Financial Officer as fairly presenting the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(ci) concurrently with any delivery of financial statements under (a) or and (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower certifying such statements (iA) 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 occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, thereto and (iiB) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the provisions of Sections 6.03, 6.04, 6.05 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) 6.10 and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)(a) above, a certificate executed by a Responsible Officer (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the Borrower accountants auditing the consolidated financial statements delivered under (a) above certifying compliance with Section 5.02(c) and providing evidence of such compliancethat, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding in the operations, business affairs and financial condition course of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year regular audit of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information business of the Borrower and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the Restricted Subsidiaries by furnishing opinion of such accountants, an Event of Default has occurred and is continuing, specifying the applicable financial statements nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than twenty-five (25) days after the end of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partnerseach month, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to unaudited monthly cash flow reports of the Borrower and the Restricted its Subsidiaries on a standalone basisconsolidated basis and as of the close of such fiscal month and the results of their operations during such month and the then elapsed portion of the fiscal quarter; (e) 10 calendar days following delivery of financial statements under (b) above, on monthly financial projections for the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.following six fiscal month period;
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Act Manufacturing Inc)
Financial Statements, Reports, etc. Furnish Borrower shall furnish to Agent, with sufficient copies for each Lender, the Administrative following, each in such form and such detail as Agent (which will promptly furnish such information to or the Lenders):Required Lenders shall reasonably request:
(ai) within 120 As soon as available and in no event later than fifty (50) days after the end last day of each fiscal quarter of Borrower (other than the last quarter in any fiscal year), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position copy of the Financial Statements of Borrower and its Subsidiaries and, if different, the Borrower (prepared on a consolidated basis) for such quarter and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification to date, certified by the president or exception as chief financial officer of Borrower to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, the financial position and condition, results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet other information reflected therein and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesadjustments);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants As soon as available and in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no event later than one hundred and twenty (120100) days following after the first day close of each fiscal year of the Borrower, (A) copies of the audited Financial Statements of Borrower and its Subsidiaries (prepared on a budget consolidated basis) for such fiscal year in form customarily year, prepared by Ernst & Young or by other independent certified public accountants of recognized national standing acceptable to Agent, (B) copies of the Borrower; provided thatunqualified opinions (or qualified opinions reasonably acceptable to Required Lenders) and management letters delivered by such accountants in connection with all such Financial Statements and (C) certificates of such accountants to 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 of Borrower 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 Holding Company Condition is satisfied nature thereof and what action 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 date last day of the relevant financial statements such quarter or year (or in as the case of a budget on the first day of the applicable fiscal yearmay be), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information calculation of the Borrower financial ratios and tests provided in Paragraph 5.03;
(iv) As soon as available and in no event later than fifty (50) days after the Restricted Subsidiaries by furnishing the applicable financial statements last day of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.each fiscal
Appears in 1 contract
Financial Statements, Reports, etc. Furnish or cause to be furnished to the Administrative Agent (which will promptly furnish such information to Trustee, each Noteholder, S&P and the Lenders):Collateral Agent:
(a1) within 120 days after the end of on each fiscal yearSettlement Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position certificate of the Borrower and its Subsidiaries andPresident, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (any Vice President or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) Independent Member certifying that no Early Amortization Event of Default or Default Potential Early Amortization Event has occurred or, if such an Early Amortization Event of Default or Default Potential Early Amortization Event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(2) as soon as possible, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at but not later than 90 days after the end of each fiscal year, the applicable Issuer's consolidated balance sheet and related statements of income and cash flows, showing the financial condition of the Issuer as of the close of such fiscal periodyear and the results of its operations during such year, audited by independent public accountants of recognized national standing reasonably acceptable to the Majority Noteholders and accompanied by an opinion of such accountants (which shall not be qualified in any material respect other than as may be approved by the Collateral Agent and the Trustee acting at the direction of the Majority Noteholders) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Issuer on a consolidated basis in accordance with GAAP consistently applied;
(d3) (i) upon as soon as possible, but not later than 45 days after the consummation end of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but notfirst three fiscal quarters of each fiscal year, in the case Issuer's unaudited consolidated balance sheets and related statements of income and cash flows showing the financial condition of the Issuer and its consolidated Subsidiaries as of the close of such requestfiscal quarter and the results of its operations and the operations of its consolidated Subsidiaries during such fiscal quarter and the elapsed portion of such fiscal year, more often than annually)all certified by the President, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date any Vice President or any Financial Officer of the information most recently received pursuant Independent Member as fairly presenting the financial condition and results of operations of it and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and normal year-end audit adjustments without GMP footnotes;
(ii4) concurrently with the any delivery of financial statements under Section 5.04(a)(1) and (2) above, a certificate executed by a Responsible of the President, any Vice President or any Financial Officer of the Borrower Independent Member certifying compliance with Section 5.02(c) such statements and providing evidence of certifying that no Purchase Termination Event, Potential Purchase Termination Event, Early Amortization Event, Potential Early Amortization or Servicer Termination Event has occurred, or if such compliancea Purchase Termination Event, including without limitation copies of Potential Purchase Termination Event, Early Amortization Event, Potential Early Amortization or Servicer Termination Event has occurred, specifying the nature and extent thereof and any flood hazard determination forms required corrective action taken or proposed to be delivered pursuant to Section 5.02(c)taken with respect thereto;
(e5) as soon as possible but not later than 90 days after the end of each fiscal year, the financial statements of the Servicer required by Section 5.01(a)(i) of the Purchase and Servicing Agreement;
(6) as soon as possible but not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year, the financial statements of the Servicer required by Section 5.01(a)(ii) of the Purchase and Servicing Agreement;
(7) concurrently with any delivery of financial statements under (5) and (6) above, a certificate of the President, any Vice President or any Financial Officer of the Servicer certifying such statements and certifying that no Purchase Termination Event, Potential Purchase Termination Event, Early Amortization Event, Potential Early Amortization or Servicer Termination Event has occurred, or if such a Purchase Termination Event, Potential Purchase Termination Event, Early Amortization Event, Potential Early Amortization or Servicer Termination Event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(8) no later than January 15 of each year, the annual independent public accountant's servicing report required by Section 6.03(a) of the Purchase and Servicing Agreement;
(9) no later than 45 days after the end of the fiscal quarter of the Issuer ending in September of each year, the report required by Section 6.03(b) of the Purchase and Servicing Agreement;
(10) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesIssuer, or compliance with the terms of any Loan Transaction Document, as the Trustee, Noteholders or such consolidating financial statements, as in each case the Administrative Collateral Agent may reasonably request request;
(for itself 11) promptly after the same are available, copies of each annual report, proxy or on behalf financial statement or other report or communication, if any, sent to the stockholders of Transmedia generally and copies of all annual, regular, periodic and special reports and registration statements which Transmedia may file or be required to file with the Securities and Exchange Commission under Sections 13 and 15(d) of the Securities Exchange Act of 1934, as amended;
(12) promptly after the commencement thereof, notice of any Lender)action, suit and proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign against Transmedia or any of its Subsidiaries, (A) which, if determined adversely to Transmedia or such Subsidiary, would have a Materially Adverse Effect, or (B) commenced by any creditor or lessor under any written credit agreement with respect to borrowed money or material lease which asserts a default thereunder on the part of Transmedia or any of its Subsidiaries;
(13) promptly upon the filing thereof and at any time upon the reasonable request of the Purchaser, the Trustee, the Collateral Agent or any Noteholder, permit such Person the opportunity to review copies of all reports, including annual reports, and notices which Transmedia or any Subsidiary files with or receives from the PBGC or the U.S. Department of Labor under ERISA; and as soon as practicable and in any event within fifteen (15) days after Transmedia or any of its Subsidiaries knows or has reason to know that any Reportable Event or Prohibited Transaction has occurred with respect to any Pension Plan or that the PBGC or Transmedia or any such Subsidiary has instituted or will institute proceedings under Title IV of ERISA to terminate any Pension Plan, Transmedia will deliver to the Purchaser, the Trustee, the Collateral Agent and each Noteholder a certificate of the President, any Vice President or a Financial Officer setting forth details as to such Reportable Event or Prohibited Transaction or Pension Plan termination and the action it proposes to take with respect thereto;
(14) promptly upon receipt thereof, copies of any reports or management letters relating to the internal financial controls and procedures delivered to Transmedia or any of its Subsidiaries by any independent certified public accountant in connection with examination of the financial statements of Transmedia or any such Subsidiary; and
(f15) no later than one hundred and twenty (120) days following such additional information as the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year)Purchaser, the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity PartnersTrustee, the Borrower shall promptly provide to the Administrative Agent, upon Collateral Agent or any Noteholder may reasonably request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, concerning Transmedia and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECits Subsidiaries.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish Deliver to the Administrative Agent (which will promptly furnish such information for prompt further distribution to the Lenders):
each Lender: (a) as soon as available, but in any event within 120 days after the end of each fiscal yearyear of the Restricted Group (beginning with the fiscal year ending December 31, 2017), (i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries andas at the end of such fiscal year, if different, the Borrower and the Restricted Subsidiariesrelated consolidated statements of operations, changes in stockholders’ equity and cash flows for such fiscal year, setting forth in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior previous fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except in reasonable detail and prepared in accordance with respect to such reconciliation) GAAP, audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an a report and opinion of such accountants (E▇▇▇▇ & Young LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall (x) be prepared in accordance with generally accepted auditing standards, (y) not be subject to qualifications or exceptions as to the scope of such audit and (z) be without a “going concern” disclosure or like qualification or exception (other than a disclosure, an exception or explanatory paragraph a qualification solely resulting from (1) the impending maturity of any Indebtedness or (2) any prospective default under any financial maintenance covenant (including the financial maintenance covenant set forth in Section 7.11) or (3) solely with respect to the maturity Term Loans, an actual Default under the financial covenant set forth in Section 7.11 and (ii) a management’s discussion and analysis of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of for such fiscal year, as compared to the previous fiscal year (including commentary on (x) any material developments or proposals affecting the Borrower and its Subsidiaries on a consolidated basis or their businesses and (y) the reasons for any significant variations from the figures for the corresponding period in accordance with GAAP;
the previous fiscal year); (b) as soon as available, but in any event within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Restricted Group (commencing with the fiscal quarter ended September 30, 2017), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries andas at the end of such fiscal quarter, if different, the Borrower and the Restricted Subsidiaries, in each case as related (x) consolidated statements of the close of operations for such fiscal quarter and for the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year then ended and (y) consolidated statements of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the corresponding figures for the corresponding periods fiscal quarter of the prior previous fiscal year (or and the corresponding portion of the previous fiscal year, all in lieu of such unaudited financial statements reasonable detail and certified by a Responsible Officer of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, presenting in all material respects, respects the financial position and condition, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject only to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) footnotes and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer management’s discussion and analysis of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition and results of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget operations for such fiscal year in form customarily prepared by quarter and the Borrower; provided that, if the Holding Company Condition is satisfied as then elapsed portion of the date of fiscal year, as compared to the relevant financial statements (or comparable periods in the case of a budget previous fiscal year (including commentary on the first day of the applicable fiscal year), the obligations in clauses (a), (bx) and (f) of this Section 5.04 may be satisfied with respect to financial information of any 130 material developments or proposals affecting the Borrower and its Subsidiaries or their businesses and (y) the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request reasons for any significant variations from the Administrative Agent, consolidating or other information that explains figures for the corresponding period in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, previous quarter year); (c) [reserved]; and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.(
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which and the Administrative Agent will promptly furnish such information to the Lenders):
(a) At any time following the occurrence and continuance of an Availability Triggering Event, within 120 30 days after of the end of each fiscal yearmonth occurring after such continuing Availability Triggering Event, for such fiscal month, a consolidated balance sheet and related statements of operations and cash flows showing the consolidated financial position of Holdings and its Subsidiaries, on a basis consistent with the basis for Holdings’ historical preparation of monthly management financial report; 115 QDI – A&R Credit Agreement (2014)
(b) Within 90 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, 2011), (i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the each of (x) Holdings and its Subsidiaries and (y) Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such year and and, starting with the fiscal year ending December 31, 2011, setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial year, which consolidated balance sheet and related statements of the Borrower operations, cash flows and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” qualified as to scope of audit or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope status of such auditHoldings, Borrower or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Holdings and its Subsidiaries, or Borrower and its Subsidiaries Subsidiaries, as applicable, on a consolidated basis in accordance with GAAPGAAP and (ii) management’s discussion and analysis (in reasonable detail) of significant operational and financial developments during the relevant period for Holdings and its Subsidiaries (it being understood that the delivery by Holdings of annual reports on Form 10-K of Holdings and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) as to Holdings and its Subsidiaries to the extent such annual reports include the information specified herein);
(bc) within 60 Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the each of (x) Holdings and its Subsidiaries and (y) Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year and (or ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period for Holdings and its Subsidiaries, all of which shall be in lieu of such unaudited financial reasonable detail and which consolidated balance sheet and related statements of the Borrower operations and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all cash flows shall be certified by Crestwood GP or a Financial Officer of the Borrower, Borrower on behalf of the Borrower, Holdings as fairly presenting, in all material respects, the financial position and results of operations of the Holdings and its Subsidiaries, or Borrower and its Subsidiaries Subsidiaries, as applicable, on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
) (c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying it being understood that the Mortgage Requirement is satisfied at delivery by Holdings of quarterly reports on Form 10-Q of Holdings and its consolidated Subsidiaries shall satisfy the end requirements of the applicable fiscal period;
(dthis Section 5.04(c) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution as to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, Holdings and its Subsidiaries to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of quarterly reports include the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(cspecified herein);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 days after the end of fiscal 1998 and within 90 days after the end of each subsequent fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ stockholders' equity showing the financial position condition of the Borrower and its the Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and operations, cash flows and stockholders' equity showing the financial position condition of the Borrower and its the Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, Officers on behalf of the Borrower, Borrower as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer on behalf of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent and demonstrating compliance with the covenant contained in Section 6.10 (iii) certifying it being understood that the Mortgage Requirement is satisfied at the end information required by this clause (ii) may be provided in a certificate of a Financial Officer on behalf of the applicable fiscal periodBorrower instead of from such accounting firm);
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates requested by the Administrative Agent, other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any governmental authority succeeding to specified information contained any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in the Perfection Certificate, such information) reflecting all changes since accounting principles and policies from those as in effect on the date of this Agreement, the information most recently received consolidated financial statements of the Borrower and the Subsidiaries delivered pursuant to Section 4.02(e), this Section 5.04(dparagraph (a) or Section 5.10(e(b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a) and (iib) concurrently above following such change, a schedule prepared by a Financial Officer on behalf of the Borrower reconciling such changes to what the financial statements would have been without such changes;
(f) prior to the end of each fiscal year, a copy of an operating and capital expenditure budget for RES for the next succeeding fiscal year;
(g) promptly following the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest of the Borrower and the Subsidiaries therein;
(h) simultaneously with the delivery of any financial statements under Section 5.04(a)pursuant to paragraph (a) or (b) above, a certificate executed balance sheet and related statements of operations, cash flows and stockholder's equity for each unconsolidated Subsidiary for the applicable period;
(i) promptly, a copy of all reports submitted in connection with any material interim or special audit made by a Responsible Officer independent accountants of the books of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of or any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)Subsidiary;
(ej) promptly, after any borrowing base report shall have been delivered to the lenders under the Existing Credit Agreement, a copy of such report; and
(k) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to acting through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECmay reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any material change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto[reserved];
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of 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. Documents required to be delivered pursuant to this Section 6.04 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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); and
provided, that: (fi) no later than one hundred the Borrower shall deliver paper copies of such documents required to be delivered pursuant to Section 6.04(a) and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) 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 (fii) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to notify the Administrative Agent, upon request from Agent (by telecopier or electronic mail) of the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent posting of any such documents required to be delivered pursuant to Section 5.04 6.04(a) and (b). 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of 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 upon the written request of the Administrative Agent (w) all Borrower Materials that are included in materials filed with to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the SEC, such documents word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered authorized the Administrative Agent, the Joint Lead 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 (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (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 under this Agreement and the Joint Lead 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 date such documents are made publicly available by the SECPlatform not designated “Public Side Information.”
Appears in 1 contract
Sources: Term Loan Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) as soon as available, but in any event within 120 one hundred twenty (120) days after the end of each fiscal yearyear of FINV, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower FINV and its Subsidiaries and, if different, (including the Borrower and the Restricted Subsidiaries, in each case Borrower) as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent accountants of recognized national international standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower FINV and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) as soon as available, but in any event within 60 one forty-five (45) days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal yearFINV, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower FINV and its Subsidiaries and, if different, (including the Borrower and the Restricted Subsidiaries, in each case Borrower) 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower FINV and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iiiy) certifying that concurrently with any delivery of financial statements under (a) above, a certificate of its independent accounting firm stating whether they obtained knowledge during the Mortgage Requirement is satisfied at the end course of the applicable fiscal periodtheir examination of such statements of any Default or Event of Default under Section 6.10 or 6.11 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates to specified information contained in requested by the Perfection CertificateAdministrative Agent, such information) reflecting all changes since other materials filed by the date Borrower or any of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently its Subsidiaries with the delivery of financial statements under Section 5.04(a)SEC, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) or distributed to its equityholders generally, if and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)as applicable;
(e) reserved;
(f) promptly, a copy of all reports submitted to the governing body (or any committee thereof) of the Borrower or any of its Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of the Borrower or any of its Subsidiaries;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service 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 a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(fi) no later than one hundred and twenty (120) 90 days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) Borrower and (f) of its consolidated Subsidiaries. Documents required to be delivered pursuant this Section 5.04 may be satisfied with respect to financial information delivered electronically and, in the case of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents Sections 5.04(d) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents, (i) shall have been posted or provided a link to on FINV’s website on the Internet at the website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/, (ii) shall be available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or (iii) shall have been posted on FINV’s behalf on SyndTrak or another website, if any, to which each Lender and the Administrative Agent under this Agreement on the date such documents are made publicly available have access (whether a commercial, third-party website or whether sponsored by the SECAdministrative Agent).
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Frank's International N.V.)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (Agent, which will promptly shall furnish such information to the Lenders):each Lender:
(a) within 120 upon the earlier of the date that is ninety (90) days after the end of each fiscal yearyear of the Borrower and the date such information is filed with the SEC, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries andas at the end of such fiscal year, if different, the Borrower and the Restricted Subsidiariesrelated consolidated statements of income or operations, changes in equity holders’ equity and cash flows for such fiscal year, setting forth in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior previous fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except in reasonable detail and prepared in accordance with respect to GAAP, audited and accompanied by a report and opinion of BDO USA, LLP, or such reconciliation) audited by other independent accountants certified public accountant of nationally recognized national standing reasonably acceptable to the Administrative Agent Agent, which report and accompanied by an opinion of such accountants (which opinion shall be without a prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 upon the earlier of the date that is forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower and the date such information is filed with the SEC, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries andas at the end of such fiscal quarter, if different, the Borrower and the Restricted Subsidiariesrelated consolidated statements of income or operations, changes in each case as of the close of equity holders’ equity and cash flows for such fiscal quarter and for the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the Borrower’s fiscal year and then ended, setting forth in each case in comparative form the corresponding figures for the corresponding periods fiscal quarter of the prior previous fiscal year (and the corresponding portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP certified by the chief executive officer, chief financial officer, treasurer or in lieu of such unaudited financial statements controller who is a Responsible Officer of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, presenting the financial position and condition, results of operations operations, equity holders’ equity and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (Subsidiaries, subject only to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer in the form of the Borrower Exhibit G (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, thereto and (ii) in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth a computation the Borrower’s calculation of Excess Cash Flow;
(d) as soon as available, but in any event within sixty (60) days after the end of each fiscal year of the Financial Performance Covenants Borrower, an annual business plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, in detail reasonably form satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end Required Lenders, of consolidated balance sheets and statements of income or operations and cash flows of the applicable Borrower and its Subsidiaries on a monthly basis for the immediately following fiscal periodyear;
(de) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed to its equity holders, as the case may be;
(f) promptly after the receipt thereof by the Borrower or any of its subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto;
(g) 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;
(h) promptly after the request by the Administrative Agent or any Lender, copies of (i) upon the consummation any documents described in Section 101(k)(1) of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to ERISA that the Borrower or any of Equity Interests in its ERISA Affiliates may request with respect to any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) Multiemployer Plan and (ii) concurrently 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 delivery Borrower or any of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower certifying compliance with Section 5.02(c) or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and providing evidence shall provide copies of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)documents and notices promptly after receipt thereof;
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender)request; and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents Documents required to be delivered pursuant to Section 5.04 5.04(a) or (b) or Section 5.04(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, such documents shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet; or (b) 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 under this Agreement on or any Lender upon its request to the date 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 fax transmission or e-mail transmission) of the posting of any such documents are made publicly available and provide to the Administrative Agent by e-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 SECBorrower 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.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, deliver to the Administrative Agent (which will promptly furnish such information to and each of the Lenders)::
(a) within 120 90 days after the end of each fiscal yearyear (including the fiscal year ended March 31, a 2003), the Borrower's consolidated balance sheet and related statements statement of operationsincome and cash flows, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form year, the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements consolidated statement of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information to be audited for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the its Subsidiaries by PricerWaterhouse Coopers or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified in any material respect other than an exception or explanatory paragraph with respect to the maturity Cases or a going concern qualification) and to be certified by a Financial Officer of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) Borrower to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, a the Borrower's consolidated balance sheet sheets and related statements of operations income and cash flows flows, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all each certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) commencing with the first fiscal month following the Closing Date, as soon as practicable, but in no event later than 30 days after the end of each fiscal month of the Borrower, (i) monthly unaudited consolidated balance sheets of each of (A) the Borrower and its Subsidiaries, (B) the Borrower and its Subsidiaries (other than Itronix and da Vinci), (C) Itronix, (D) da Vinci and (E) commencing with the balance sheet for the month of June 2003, the Foreign Subsidiaries and (ii) in each case, the related consolidated statements of earnings and cash flows of such Person(s) for the prior fiscal month and the cumulative period from the first fiscal month following the Closing Date to the end of such prior fiscal month and setting forth in comparative form the figures from the Business Plan for such fiscal month and such cumulative period, each certified by a Financial Officer of the Borrower;
(i) concurrently with any delivery of financial statements under (a) or and (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower certifying such statements (iA) 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 occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, thereto and (iiB) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the provisions of Sections 6.03, 6.04, 6.05, 6.10, 6.11, 6.13, 6.14, 6.16 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) 6.17 and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)(a) above, a certificate executed (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Borrower and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(e) as soon as available, but in any event not later than five (5) days prior to the end of each month, (i) a Budget for the next succeeding 13-week period (commencing with the Budget for July 2003), (ii) a comparison of actual receipts and disbursements for the preceding month to the Budget for such month, with an explanation of any material variances and (iii) a certificate of a Financial Officer stating that such Budget is based on reasonable estimates and assumptions and that such reconciliation is accurate in all material respects;
(f) as soon as available, but in any event not later than the second Business Day of each week, (i) a detailed report of the amount and location of cash and cash equivalents of Holdings and its Subsidiaries as of 5:00 p.m. (New York time) on the last Business Day of the prior week, in substantially the form of Exhibit G, (ii) a comparison of actual receipts and disbursements for the prior week to the Budget for such week and for the cumulative period from the first week of the Budget to the end of such prior week, with an explanation of any material variances and (iii) a certificate of a Financial Officer stating that such report and comparison are true and correct in all material respects;
(g) as soon as possible, and in any event within 30 days of the Closing Date, a consolidated pro forma balance sheet of the Borrower's and the Guarantors' financial condition as of the Filing Date;
(h) as soon as possible, and in any event within 30 days of the Closing Date, a schedule of all unexpired executory contracts and an analysis of cure payments and claims arising in connection with the assumption or rejection of each such contract or lease;
(i) 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;
(j) as soon as available and in any event (A) within 30 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate has occurred and (B) within 10 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such Plan has occurred, a Responsible statement of a Financial Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence describing the full details of such complianceTermination Event and the action, including without limitation if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto;
(k) promptly and in any event within 10 days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any flood hazard determination forms such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(l) if requested by the Agent, promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of the Borrower or any of its ERISA Affiliates;
(m) within 10 days after notice is given or required to be delivered pursuant given to the PBGC under Section 5.02(c302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Financial Officer of the Borrower setting forth (A) sufficient information necessary to determine the amount of the lien under Section 302(f)(3), (B) the reason for the failure to make the required payments and (C) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(en) promptly and in any event within 10 days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in clause (A), (B) or (C) above;
(o) promptly, from time to time, such other information regarding the operations, ; business affairs and financial condition of Holdings, the Borrower or any of its Relevant SubsidiariesSubsidiaries (including, without limitation, periodic updates of (i) the Business Plan, (ii) the Budget and (iii) the status of the Borrower's efforts to consummate certain asset dispositions), or compliance with the terms of any Loan Document, material loan or such consolidating financial statementsfinancing agreements, as in each case the Administrative Agent Agent, at the request of any Lender, may reasonably request request;
(for itself p) furnish to the Agent and its counsel promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Borrower or any Lender)of the Guarantors with the Bankruptcy Court in the Cases, or distributed by or on behalf of the Borrower or any of the Guarantors to any official committee appointed in the Cases; and
(fq) no later than one hundred and twenty (120) days following be available to discuss the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be business plan delivered pursuant to Section 5.04 are included in materials filed 4.01(h) with the SEC, such documents shall be deemed to have been delivered to Agent and Lenders upon the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECAgent's reasonable request.
Appears in 1 contract
Sources: Revolving Credit, Guaranty and Security Agreement (Acterna Corp)
Financial Statements, Reports, etc. Furnish In the case of the Company, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Bank:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet sheets and related statements of operationsincome and cash flows, cash flows and owners’ equity showing the financial position condition of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Coopers & Lybrand or other independent public accountants of recognized o▇ ▇▇▇▇gnized national standing reasonably acceptable to the Administrative Agent Required Banks and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries Company on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet sheets and related statements of operations income and cash flows flows, showing the financial position condition of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries Company on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.05, 6.07 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.08;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Permitted Business Acquisitiongovernmental authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Bank may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Tredegar Industries Inc)
Financial Statements, Reports, etc. Furnish In the case of the ---------------------------------- Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 100 days after the end of each fiscal year, a its audited consolidated balance sheet sheets and related statements of operationsincome and cash flow, cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet sheets and related statements of operations income and cash flows flow, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a the Financial Officer of the Borrower, on behalf of the Borrower, Borrower as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP the accounting firm or a the Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.12, 6.13 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal periodSection 6.14;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Permitted Business AcquisitionGovernmental Authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Agent or such consolidating financial statements, as in each case the Administrative Agent any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Facilities Agreement (Choice Hotels International Inc /De)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly shall furnish such information statements, certificates or other documents received pursuant to the Lendersthis Section 5.04 to each Lender and Issuing Bank):
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders' equity and cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower opining on or certifying such statements (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11, 6.12, 6.13 and 6.14 and (iiix) certifying that in the Mortgage Requirement is satisfied at case of a certificate delivered with the end financial statements required by paragraph (b) above for the second fiscal quarter of each year, setting forth the Borrower's calculation of Excess Cash Flow, and (y) in the case of the applicable certificate delivered pursuant to this paragraph (c) with the financial statements under paragraph (a) above for the fiscal period;year ended December 31, 2001, a reasonably detailed schedule showing the pro forma adjustments made to calculate Consolidated EBITDA for the fiscal quarters ended March 31, 2001 and June 30, 2001, as contemplated by the last sentence of the definition of Consolidated EBITDA (which shall include all pro forma adjustments resulting from the 2001 Cost Reduction Plan calculated as contemplated pursuant to Schedule 5.04(d)(1)),
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)clause (a) above, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such compliance, including without limitation copies financial statements of any flood hazard determination forms Default or Event of Default (which certificate may be limited to the extent required to be by accounting rules or guidelines); and in the case of the certificate delivered pursuant to Section 5.02(cthis paragraph (d) with the financial statements under paragraph (a) above for the fiscal year ended December 31, 2001, such report of such accounting firm shall be substantially in the form of Schedule 5.04(d)(2) and shall be accompanied by the additional report of such accounting firm in the form of 5.04(d)(3). 62
(e) no later than 45 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the then current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(g) promptly after the receipt thereof by Holdings or the Borrower or any of their respective subsidiaries, a copy of any "management letter" received by any such person from its certified public accountants and the management's response thereto; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Agreement (Malek Frederic V)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Issuing Bank:
(a) within 120 45 days after the end of each fiscal yearFiscal Quarter (or, a if such Fiscal Quarter end is also the end of Borrower’s Fiscal Year, 90 days after the end of such Fiscal Year), Borrower’s consolidated and consolidating balance sheet and related consolidated and consolidating statements of operationsincome and cash flows, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year Fiscal Quarter and the consolidated results of their operations during and cash flows for such year Fiscal Quarter and setting forth in the then elapsed portion of the Fiscal Year with comparative form the corresponding figures for the prior fiscal year (or same periods in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)immediately preceding Fiscal Year, all (except with respect to such reconciliation) audited certified by independent accountants a Financial Officer of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception Borrower as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries subsidiaries on a consolidated and consolidating basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)certain footnotes provided, however, that such obligation shall be satisfied if Borrower timely files with the SEC all quarterly and annual reports that Borrower is required to file with the SEC on Forms 10-Q and 10-K, provided, further, that the availability of the foregoing materials on the SEC’s ▇▇▇▇▇ service (or its successor) will be deemed to satisfy Borrower’s delivery obligation;
(cb) concurrently with any delivery delivery, or deemed delivery, of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(dc) (i) upon the consummation of (A) any Permitted Business Acquisitionpromptly, (B) the acquisition of any Relevant Subsidiaryfollowing a request by Issuing Bank, (C) any Person becoming a Relevant Subsidiary or (D) the contribution all documentation and other information that Issuing Bank reasonably requests in order to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) comply with its ongoing obligations under applicable “know your customer” and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) anti-money laundering rules and providing evidence of such complianceregulations, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);the Patriot Act; and
(ed) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiariessubsidiaries, or compliance with the terms of any Loan Credit Document, or such consolidating financial statements, as in each case the Administrative Agent Issuing Bank may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish Borrower shall furnish to Agent for each Lender the Administrative following, each in such form and such detail as Agent shall reasonably request (copies of which will Agent shall promptly furnish such information deliver to the Lenderseach Lender):
(ai) within 120 As soon as available and in no event later than fifty (50) days after the end last day of each fiscal yearquarter of Borrower, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position copy of the Financial Statements of Borrower and its Subsidiaries and, if different, the Borrower (prepared on a consolidated basis) for such quarter and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification to date, certified by the chief executive officer, president, chief financial officer or exception as treasurer of Borrower to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, the financial position and condition, results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet other information reflected therein and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesadjustments);
(cii) concurrently with any delivery As soon as available and in no event later than one hundred (100) days after the close of financial statements under each fiscal year of Borrower, (aA) or (b) above, a certificate of Crestwood GP or a Financial Officer copies of the audited Financial Statements of Borrower and its Subsidiaries (prepared on a consolidated basis) for such year, prepared by independent certified public accountants of recognized national standing acceptable to Agent, and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to Agent) and management letters delivered by such accountants in connection with all such Financial Statements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) certifying and (ii), a compliance certificate (the "Compliance Certificate") of the chief executive officer, president, chief financial officer or treasurer of 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 orand is continuing, if such an Event of Default or Default has occurred, specifying a statement as to the nature and extent thereof and any corrective what action taken or proposed Borrower proposes to be taken take with respect thereto, and (iiB) setting forth a computation sets forth, for the quarter or year covered by such Financial Statements or as of the Financial Performance Covenants in detail reasonably satisfactory to last day of such quarter or year (as the Administrative Agent and (iii) certifying that case may be), the Mortgage Requirement is satisfied at the end calculation of the applicable fiscal periodfinancial ratios and tests provided in Subparagraph 5.02(l) and, if applicable, the calculation of the Applicable Margins, Commitment Fee percentages and LC Usage Fee percentages for such quarter determined in accordance with the Pricing Grid;
(div) As soon as possible and in no event later than ten (i10) upon Business Days after the consummation date of promulgation thereof by S&P and/or ▇▇▇▇▇'▇, notice of any change in Borrower's Debt Rating;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of Borrower knows of the occurrence or existence of (A) any Permitted Business Acquisition, Reportable Event under any Employee Benefit Plan or Multiemployer Plan; (B) the acquisition any actual litigation or threatened litigation which has a reasonable likelihood of any Relevant Subsidiaryleading to actual litigation, (C) any Person becoming a Relevant Subsidiary suits, claims or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the disputes against Borrower or any of its Relevant Subsidiaries involving potential monetary damages payable by Borrower or its Subsidiaries of $10,000,000 or more alone and/or $20,000,000 or more in the aggregate; (C) any other event or condition which is reasonably likely to have a Material Adverse Effect; or (D) any Default or Event of Default; the statement of the president or chief financial officer of Borrower setting forth details of such event, condition, Default or Event of Default and the action which Borrower proposes to take with respect thereto;
(vi) 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 Borrower or any of its Subsidiaries with any securities exchange or the Securities and Exchange Commission (including, without limitation, all 10-Q, 10-K and 8-K reports); (B) all reports, proxy statements and financial statements sent or made available by Borrower or any of its Subsidiaries to its security holders; and (C) all press releases and other similar public statements concerning any material developments in the business of Borrower or any of its Subsidiaries made available by Borrower or any of its Subsidiaries to the public generally;
(vii) Contemporaneously with any Investment by Borrower consisting of any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person or any capital contribution to or any other investment in any other Person having a value in excess of $60,000,000, a pro forma Compliance Certificate certified by the chief executive officer, president, chief financial officer or treasurer of Borrower which sets forth the calculation of the financial ratios and tests provided in Subparagraph 5.02(l) after giving effect to any such Investment; and
(viii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or its Subsidiaries, or and compliance by Borrower with the terms of any Loan Document, or such consolidating financial statements, this Agreement and the other Credit Documents as in each case the Administrative Agent may from time to time reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Annual Report
Financial Statements, Reports, etc. Furnish The Company will furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Holders:
(a) within 120 90 days after the end of each fiscal year, a consolidated the Consolidated and consolidating balance sheet sheets and related statements of operations, stockholders' equity and cash flows and owners’ equity flows, showing the financial position condition of the Borrower Company and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of year, such audited financial Consolidated statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) be audited by an independent accountants public accountant of recognized national or regional standing reasonably acceptable to the Administrative Agent Holders, and accompanied by an opinion of such accountants accountant (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness maturesany material respect) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Company and its Subsidiaries on a consolidated Consolidated basis in accordance with GAAP;
(b) within 60 30 days after the end of each month, the Consolidated and consolidating financial statements of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower Company and its Subsidiaries and(including revenue and gross profit information by major product line), if different, the Borrower and the Restricted Subsidiaries, setting forth in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods month and fiscal year-to-date period of the prior preceding fiscal year (or in lieu of such unaudited financial statements and the corresponding figures for the corresponding month and fiscal year-to-date period of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)annual forecast, all certified by Crestwood GP or a its Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower Company and its Subsidiaries on a consolidated Consolidated basis in accordance with GAAP (but without footnotes), subject to normal year-end audit adjustments adjustments, together with a monthly management summary description of operations, together with detailed calculations evidencing compliance with the financial ratios and the absence of footnotes)covenants set forth in Section 6.12;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower Company opining on or certifying such statements (iwhich certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) containing a detailed calculation of the relevant items used to calculate compliance with the financial covenants set forth in Section 6.12 and, 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) to the extent that any Credit Party is or becomes subject to such reporting requirements, promptly after the same become publicly available, notice of all final periodic and other reports, proxy statements and other materials filed by such Credit Party with the U.S. Securities and Exchange Commission (the "SEC"), or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders (exclusive of proprietary information unless (i) upon the consummation of (A) any Permitted Business Acquisition, (B) Person that is the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date source of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) report is a public company and (ii) concurrently such Person would then be required to file such proprietary information with the delivery of financial statements under Section 5.04(aSEC), a certificate executed by a Responsible Officer of as the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)case may be;
(e) promptlypromptly upon reasonable request by any Holder, from time to time, such other information regarding copies of all material documents filed by the operations, business affairs and financial condition of the Borrower Company or any of its Relevant SubsidiariesSubsidiaries with any Governmental Authority, or compliance with the terms of any Loan Documentincluding, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year)without limitation, the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity PartnersU.S. Internal Revenue Service, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.U.S. Environmental
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 days after the end of each fiscal year, starting with the fiscal year ended December 31, 2012, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, starting with the fiscal quarter ended March 31, 2012, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iiiy) certifying that concurrently with any delivery of financial statements under (a) above, a certificate of its independent accounting firm stating whether they obtained knowledge during the Mortgage Requirement is satisfied at the end course of the applicable fiscal periodtheir examination of such statements of any Default or Event of Default under Section 6.10 or 6.11 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of its Relevant Subsidiaries with the SEC, or distributed to its stockholders generally, if and as applicable;
(e) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) Subsidiary or any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group AcquisitionSubsidiary, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds U.S. $25.0 5.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e4.02(d), this Section 5.04(dparagraph (e) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(ef) promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of the Borrower or any of its Relevant Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of the Borrower or any of its Relevant Subsidiaries;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service 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 a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;
(i) concurrently with any delivery of financial statements under (a) or (b) above, a report of gas gathering output and throughput with respect to the Pipeline Systems and Pipeline Properties, if any; and
(fj) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish The Borrower will furnish to the Administrative Agent (which and the Agent will promptly furnish such information to the LendersLenders (via the Platform (as defined in Section 9.17(b)) or otherwise):
(a) within 120 100 days after the end of each fiscal yearyear of the Borrower, a (i) its audited consolidated balance sheet and related statements of operations, changes in partners’ equity and cash flows and owners’ equity showing the financial position as of the Borrower end of and its Subsidiaries andfor such year, if different, the Borrower and the Restricted Subsidiaries, setting forth in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior previous fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except prepared in accordance with respect to such reconciliation) audited GAAP and reported on by PricewaterhouseCoopers LLP, or other independent accountants registered public accounting firm of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, and (ii) a statement of (x) the value of the Borrower’s total assets under management as of the close of regular session trading on The New York Stock Exchange, Inc. (“NYSE”) on the last day during such period on which the NYSE was open for regular session trading, such value determined by the Borrower in accordance with the Borrower’s procedures for valuation of securities in effect on that date, and (y) the total amount of assets added to assets managed by the Borrower during such period and the total amount of assets withdrawn from assets managed by the Borrower during such period, in each case excluding the effect of market appreciation and depreciation; provided that, following the Reorganization, to the extent Artisan Partners Asset Management Inc.’s Annual Report on Form 10-K (the “Form 10-K”) filed with the SEC includes the information required to be delivered pursuant to this Section 5.04(a), the filing of the Form 10-K and the delivery thereof to the Agent (which may include written notice to the Agent indicating the website on which such filing may be accessed) within the time period specified above shall be deemed to satisfy the requirements of this Section 5.04(a);
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, a (i) its consolidated balance sheet and related statements of operations operations, and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close end of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and year, setting forth in each case in comparative form the corresponding figures for the corresponding period or periods of (or, in the prior fiscal year (or in lieu of such unaudited financial statements case of the Borrower and balance sheet, as of the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for end of) the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)previous fiscal year, all prepared in accordance with GAAP and certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a statement of (x) the value of the Borrower’s total assets under management as of the close of regular session trading on the NYSE on the last day during such period on which the NYSE was open for regular session trading, such value determined by the Borrower in accordance with the Borrower’s procedures for valuation of securities in effect on that date, and (y) the total amount of assets added to assets managed by the Borrower during such period and the total amount of assets withdrawn from assets managed by the Borrower during such period, in each case excluding the effect of market appreciation and depreciation; provided that, following the Reorganization, to the extent Artisan Partners Asset Management Inc.’s Quarterly Report on Form 10-Q (the “Form 10-Q”) filed with the SEC includes the information required to be delivered pursuant to this Section 5.04(b), the filing of the Form 10-Q and the delivery thereof to the Agent (which may include written notice to the Agent indicating the website on which such filing may be accessed) within the time period specified above shall be deemed to satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of not later than the date under which financial statements are required to be delivered under clause (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower in the form of Exhibit H (i) certifying that no Event of Default or as to whether a Default has occurred orand, if such an Event of Default or a Default has occurred, specifying the nature and extent details thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation reasonably detailed calculations demonstrating compliance with Section 6.11, (iii) stating whether any material changes in GAAP applied in the preparation of the Borrower’s financial statements have occurred since the date of the most recent audited annual financial statements furnished to the Lenders hereunder and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (iv) containing a reconciliation (which shall be certified as being true and correct by a Financial Performance Covenants Officer) specifying in detail reasonably satisfactory to the Administrative Agent the effects, if any, of the application of ASC 810 in respect of any Variable Interest Entities, which reconciliation shall show all adjustments and modifications to the financial statements delivered under clause (iiia) certifying that or (b) above to eliminate the Mortgage Requirement is satisfied at the end effects of ASC 810 and set forth calculations of the applicable fiscal periodamounts (including Consolidated EBITDA, Consolidated Total Indebtedness and Consolidated Interest Expense) and ratios upon which covenant compliance is based, after eliminating the effect of the application of ASC 810;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)clause (a) above, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such compliance, including without limitation copies financial statements of any flood hazard determination forms Default (which certificate may be limited to the extent required to be delivered pursuant to Section 5.02(cby accounting rules or guidelines);
(e) promptlypromptly upon the furnishing thereof to all of the Limited Partners of the Borrower generally, from time to timecopies of all financial statements, reports, proxy statements and other materials so furnished;
(f) promptly upon the filing of any financial statements, reports, proxy statements and other materials with the SEC or with any national securities exchange, written notice of such filing indicating the website on which such filing may be accessed; and
(g) promptly following any request therefor, such other information regarding the operations(including financial information , business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied including with respect to financial information of any Specified Accounting Adjustments) as the Borrower and Agent or any Lender, making its request through the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request may from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating time to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECtime reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement (Artisan Partners Asset Management Inc.)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any material change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) [reserved];
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of 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 the Beneficial Ownership Regulation. Documents required to be delivered pursuant to this Section 6.04 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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); and
provided, that: (fi) no later than one hundred the Borrower shall deliver paper copies of such documents required to be delivered pursuant to Section 6.04(a) and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) 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 (fii) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to notify the Administrative Agent, upon request from Agent (by telecopier or electronic mail) of the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent posting of any such documents required to be delivered pursuant to Section 5.04 6.04(a) and (b). 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of 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 upon the written request of the Administrative Agent (w) all Borrower Materials that are included in materials filed with to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the SEC, such documents word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered authorized the Administrative Agent, the Joint Lead 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 (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (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 under this Agreement and the Joint Lead 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 date such documents are made publicly available by the SECPlatform not designated “Public Side Information.”
Appears in 1 contract
Sources: Term Loan Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto;
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of by any Lender); and
(f) no later than one hundred , all documentation and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains such Lender reasonably requests in reasonable detail order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the differences between the information relating USA PATRIOT Act. Documents required to Crestwood Equity Partners, on the one hand, and the information relating be delivered pursuant to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that this Section 6.04 (to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, such documents shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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 under this Agreement on or any Lender upon its request to the date Borrower to deliver such documents are made publicly available paper copies until a written request to cease delivering paper copies is given by the SEC.Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of 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 upon the written request of the Administrative Agent
Appears in 1 contract
Sources: Bridge Term Loan Credit Agreement
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 90 days after the end of each fiscal year, a (i) the annual audited consolidated balance sheet statement of financial condition and related consolidated statements of operations, changes in partners’ capital and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close end of and for such fiscal year of Blackstone, 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 Blackstone’s ability to continue as a going concern, (ii) the unaudited annual condensed and consolidated statement of financial condition and condensed and consolidated statements of income and cash flows as of the consolidated results end of their operations during and for such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower combined Guarantors and the Subsidiaries, on substantially in the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable form delivered pursuant to the Administrative Agent and accompanied Existing Credit Agreement, certified by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception Financial Officer as to the scope of such audit) to the effect that such consolidated financial statements fairly presentpresenting, in all material respects, the financial position and results of operations of the Borrower combined Guarantors and its the Subsidiaries on a condensed and consolidated basis in accordance with GAAPGAAP and (iii) a reconciliation prepared by a Financial Officer of the audited financial statements referred to in clause (i) to the unaudited financial statements referred to in clause (ii);
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a (i) the quarterly unaudited condensed and consolidated balance sheet statement of financial condition and related condensed and consolidated statements of operations operations, changes in partners’ capital and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case Blackstone as of the close end of such fiscal quarter and the consolidated results of their operations during for such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer as presenting fairly, in all material respects, the financial position and results of operations of Blackstone on a consolidated basis in accordance with GAAP consistently applied, except for the absence of footnotes or as otherwise described therein and subject to year-end audit adjustments, (ii) the quarterly unaudited condensed and consolidated statement of financial condition and condensed and consolidated statements of income and cash flows of the Borrower, on behalf combined Loan Parties and the Subsidiaries as of the Borrowerend of and for such fiscal quarter and the then-elapsed portion of the fiscal year, substantially in the form delivered pursuant to the Existing Credit Agreement, certified by a Financial Officer as fairly presentingpresenting fairly, in all material respects, the financial position and results of operations of the Borrower combined Guarantors and its the Subsidiaries on a condensed and consolidated basis in accordance with GAAP (consistently applied, except for the absence of footnotes or as otherwise described therein and subject to normal year-end audit adjustments and (iii) a reconciliation prepared by a Financial Officer of the absence of footnotesunaudited financial statements referred to in clause (i) to the unaudited financial statements referred to in clause (ii);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that that, to the best of his or her knowledge, no Event of Default or Default has occurred or, if such an Event of Default or a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants, including reasonably detailed computations of Total Indebtedness and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;Combined EBITDA; and
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Guarantors or any of its Relevant the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Agreement (Blackstone Inc.)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the LendersLenders (or, with respect to clause (f) below, to the Lenders who have requested such information)):
(a) within 120 90 days after following the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower Holdings and its Restricted Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such fiscal year and and, in each case, starting with the fiscal year ending December 31, 2023, setting forth in comparative form the corresponding figures for the prior fiscal year year, (or together with, in lieu all cases, customary management discussion and analysis) which consolidated balance sheet and related statements of such operations, cash flows and owners’ equity will be audited financial statements by the auditors of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one handClosing Date, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing standing, or such other accountants as are reasonably acceptable to the Administrative Agent Agent, and accompanied by an opinion of such accountants (which opinion shall not be without subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to resulting solely from (i) an upcoming maturity date of indebtedness occurring within one year from the scope of time such auditopinion is delivered, or (ii) anticipated or actual financial covenant non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower Holdings and its Restricted Subsidiaries on a consolidated basis in accordance with GAAPGAAP (the applicable financial statements delivered pursuant to this clause (a) being the “Annual Financial Statements”);
(b) within 60 45 days after following the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower Holdings and its Restricted Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and and, in each case, the then-elapsed portion of the fiscal year and setting forth forth, starting with the fiscal quarter ending June 30, 2023, in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or together with, in lieu of such unaudited financial all cases, customary management discussion and analysis), which consolidated balance sheet and related statements of the Borrower operations and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all cash flows will be certified by Crestwood GP or a Financial Authorized Officer of the Borrower, Holdings on behalf of the Borrower, Holdings as fairly presenting, in all material respects, the financial position and results of operations of the Borrower Holdings and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the applicable financial statements delivered pursuant to this clause (b) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, collectively, the “Required Financial Statements”);
(c) concurrently with any delivery of financial statements under (a) or (b) aboveRequired Financial Statements, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying to such Financial Officer’s knowledge that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred or, if such an Event of Default or Default has occurredand is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates to specified information contained in requested by the Perfection CertificateAdministrative Agent, such information) reflecting all changes since other materials publicly filed by Holdings, the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) Borrower or Section 5.10(e) and (ii) concurrently any Restricted Subsidiary with the delivery SEC;
(e) within 90 days following the end of financial statements under Section 5.04(aeach full fiscal year (starting with the fiscal year ending December 31, 2023), a certificate executed consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Responsible Financial Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence on behalf of such compliance, including without limitation copies of any flood hazard determination forms required the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be delivered pursuant to Section 5.02(c);reasonable as of the date of delivery thereof; and
(ef) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Relevant SubsidiariesRestricted Subsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsin each case, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following . Anything to the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year)contrary notwithstanding, the obligations in clauses (a), (b) and (fb) of this Section 5.04 8.4 may be satisfied with respect to financial information of the Borrower Holdings and the its Restricted Subsidiaries by furnishing (1) the applicable financial statements of Crestwood Equity Partners; provided that to Holdings or (2) Holdings’ Form 10-K or 10-Q, as applicable, filed with the extent SEC. The obligations in clauses (a) and (b) of this Section 8.4 may be satisfied by delivery of financial information of Holdings and its Subsidiaries so long as such information relates to Crestwood Equity Partnersfinancial statements include a reasonably detailed presentation, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, either on the one handface of the financial statements or in the footnotes thereto, of the financial condition and the information relating to the Borrower results of operations of Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents its Subsidiaries. Documents required to be delivered pursuant to this Section 5.04 are included 8.4 may be delivered electronically in materials filed accordance with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECSection 13.2.
Appears in 1 contract
Sources: Bridge Credit Agreement (Xerox Corp)
Financial Statements, Reports, etc. Furnish In the case of the Company, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 100 days after the end of each fiscal year, a its audited consolidated balance sheet sheets and related statements of operationsincome and cash flow, cash flows and owners’ equity showing the financial position condition of the Borrower Company and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries Company on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet sheets and related statements of operations income and cash flows flow, showing the financial position condition of the Borrower Company and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries Company on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.06, 6.11, 6.12 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.13;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Permitted Business AcquisitionGovernmental Authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Agent or such consolidating financial statements, as in each case the Administrative Agent any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Competitive Advance and Multi Currency Revolving Credit Facility Agreement (Manor Care Inc/New)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (Agent, which will promptly shall furnish such information to the Lenders):each Lender:
(a) within 120 90 days after the end of each fiscal yearAnnual Reporting Period, a its consolidated balance sheet and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year Annual Reporting Period and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in year, together with comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)immediately preceding Annual Reporting Period, all (except with respect to such reconciliation) audited by Pricewaterhouse Coopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “"going concern” " or like qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied together with a statement of such accountants that in connection with their audit, nothing came to their attention that caused them to believe that the Borrower was not in compliance with the terms, covenants, provisions or conditions of Sections 6.10 through 6.12 hereof insofar as they relate to accounting terms;
(b) within 60 45 days after the end of each of the first three fiscal quarters Quarterly Reporting Periods of each fiscal yearAnnual Reporting Period, a its consolidated balance sheet and related statements of operations income, stockholders' equity and cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and(excluding Network Publications Canada, if different, Inc. prior to the Borrower and the Restricted Subsidiaries, in each case delivery of a Change of Reporting Period Notice) as of the close of such fiscal quarter Quarterly Reporting Period and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter Quarterly Reporting Period and the then-then elapsed portion of the fiscal year Annual Reporting Period, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)immediately preceding Annual Reporting Period, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) within 30 days after the end of the first two Monthly Reporting Periods of each Quarterly Reporting Period, its consolidated balance sheet and related statements of income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries (excluding Network Publications Canada, Inc. prior to the delivery of a Change of Reporting Period Notice) during such Monthly Reporting Period and the then elapsed portion of the Annual Reporting Period, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (bc) above, a certificate of Crestwood GP or a the Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently a certificate delivered with the delivery of financial statements under Section 5.04(a)required by paragraph (a) above, a certificate executed by a Responsible Officer setting forth the Borrower's calculation of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)Excess Cash Flow;
(e) concurrently with any delivery of consolidated financial statements under clause (a) or (b) above, the related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(f) within 90 days after the beginning of each Annual Reporting Period of the Borrower, a detailed consolidated budget for such Annual Reporting Period (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such Annual Reporting Period and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(h) promptly after the receipt thereof by Holdings or the Borrower or any of their respective subsidiaries, a copy of any "management letter" received by any such Person from its certified public accountants and the management's response thereto;
(i) 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
(j) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Network Communications, Inc.)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Bank:
(a) within 120 days after the end of each fiscal yearyear of the Borrower, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position sheets of the Borrower and its Subsidiaries andconsolidated subsidiaries, if differentthe related consolidated statements of operations and the related consolidated statements of stockholders' equity and cash flows, showing the financial condition of the Borrower and the Restricted Subsidiaries, in each case its consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from all such consolidated financial statements), all (except with respect to such reconciliation) statements audited by and accompanied by the report thereon of Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Banks and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPbasis;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, a consolidated balance sheet sheets and related consolidated statements of operations income, retained earnings and cash flows flows, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Borrower as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, 49 45 subject to normal year-end audit adjustments and except for the absence of footnotes)footnotes in the case of quarterly statements;
(c) concurrently with any delivery of financial statements under (a) above, a certificate of the independent public accountants opining on or certifying such statements (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that no Event of Default or Default has occurred or, if such an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower opining on or certifying such statements (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent and (iii) certifying that demonstrating compliance with the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information covenants contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(eSections 6.01(a) and (ii) concurrently with the delivery of financial statements under Section 5.04(ab)(v), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) 6.03 and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)6.05;
(e) promptly after the same become publicly available, copies of all material periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary 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, or distributed to its public shareholders, as the case may be; and
(f) promptly after the same become publicly available, copies of all material reports pertaining to any change in ownership filed by the Borrower or any Subsidiary with any Governmental Authority; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Agent or such consolidating financial statements, as in each case the Administrative Agent any Bank may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.request. 50 46
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
Financial Statements, Reports, etc. Furnish Deliver to the ---------------------------------- Administrative Agent (which will promptly furnish such information to and each of the Lenders)::
(a) within 120 ninety (90) days after the end of each fiscal year, a the Parent's and its Subsidiaries' consolidated balance sheet sheets and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity flows, showing the financial position condition of the Borrower Parent and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form year, the corresponding figures for the prior fiscal year (or in lieu of such audited financial consolidated statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information Parent to be audited for the Borrower Parent and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the its Subsidiaries by their current independent auditors or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness maturesCases or a going concern qualification) and without any qualification or exception as to the scope be certified by a Financial Officer of such audit) Parent to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 forty-five (45) days after the end of each of fiscal quarter (including the first three fourth fiscal quarters quarter) of each fiscal year, a the Parent's and its Subsidiaries consolidated balance sheet sheets and related statements of operations income, stockholders' equity and cash flows flows, showing the financial position condition of the Borrower Parent and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all each certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Parent as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) aboveabove as applicable, (i) a certificate of Crestwood GP or a Financial Officer of the Borrower Parent certifying such statements and (iA) 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 and is continuing, or, if such an Event of Default or Default event has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, thereto and (iiB) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the provisions of Sections 6.3, 6.4, 6.5 and 6.10 and (iiiii) certifying that the Mortgage Requirement is satisfied at the end a certificate of the applicable fiscal period------------ --- --- ---- Parent's accountants accompanying the audited consolidated financial statements delivered under paragraph (a) above certifying that, in the course of the regular audit of the business of the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than thirty (30) days after the end of each month (other than the last month of a fiscal quarter): (i) upon the consummation unaudited monthly balance sheets and related statements of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year, each certified by a Financial Officer of Parent as fairly presenting the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments, together with a certificate of a Financial Officer of the Parent setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with Section ------- 6.5; and (ii) a reconciliation of the results of the Borrowers' business --- operations for the preceding month as compared to the corresponding period in the forecast;
(e) as soon as possible, and in any event within thirty (30) days of the Closing Date, a consolidated pro forma balance sheet of the Borrowers' financial condition as of October 15, 2001;
(f) concurrently with any delivery of financial statements under paragraph (b) above, updates, if any, of the forecast delivered to the Administrative Agent pursuant to Section 4.1(i), satisfactory in form and -------------- substance to the Administrative Agent;
(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 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;
(h) as soon as available and in any event (A) within thirty (30) days after any Permitted Business AcquisitionBorrower or the Guarantors or any of their ERISA Affiliates knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Single Employer Plan of any of the Borrowers or the Guarantors or such ERISA Affiliate has occurred and (B) within ten (10) days after any of the Borrowers or the Guarantors or any of their ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such Plan has occurred, a statement of a Financial Officer of such Borrower or the Guarantors describing such Termination Event and the action, if any, which such Borrower or the Guarantors or such ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within ten (10) days after receipt thereof by any of the Borrowers or the Guarantors or any of their ERISA Affiliates from the PBGC copies of each notice received by such Borrower or the Guarantors or any such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of such Borrower or the Guarantors or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(j) if requested by the Administrative Agent, promptly and in any event within thirty (30) days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of any of the Borrowers, the Guarantors or any of their ERISA Affiliates;
(k) within ten (10) days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of any of the Borrowers or the Guarantors or any of their ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Financial Officer of such Borrower or the Guarantors setting forth (A) sufficient information necessary to determine the amount of the Lien under Section 302(f)(3), (B) the acquisition reason for the failure to make the required payments and (C) the action, if any, which the Borrowers or the Guarantors or any of their ERISA Affiliates proposed to take with respect thereto;
(l) promptly and in any Relevant Subsidiaryevent within ten (10) days after receipt thereof by any of the Borrowers or the Guarantors or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by such Borrower or the Guarantors or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) any Person becoming the termination of a Relevant Subsidiary Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the contribution to amount of liability incurred, or which may be incurred, by the Borrower of Equity Interests Borrowers or the Guarantors or any ERISA Affiliate in connection with any Person acquired pursuant to a Group Acquisition, event described in each case if the aggregate consideration for such transaction (or, in the case of clause (DA), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dB) or Section 5.10(e(C) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)above;
(em) promptly, from time to time, such other information (including, without limitation, projections) regarding the operations, business affairs and financial condition of the any Borrower or any of its Relevant Subsidiariesthe Guarantors, or compliance with the terms of any Loan Document, material loan or such consolidating financial statements, financing agreements as in each case the Administrative Agent Agent, at the request of any Lender, may reasonably request request; and
(for itself n) promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of any Lender)of the Borrowers with the Bankruptcy Court in the Cases, or distributed by or on behalf of any of the Borrowers to any official committee appointed in any of the Cases, providing copies of same to counsel for the Administrative Agent; and
(fo) as soon as possible and in no event later than one hundred and twenty (120) days following the first day January 31 of each fiscal year during the term of this Agreement, an updated forecast of the BorrowerBorrowers' cash flows for the period from January 1 of such year through December 31 of such year, on a budget for monthly basis and setting forth the anticipated uses of the Commitment and such fiscal year forecast shall be satisfactory in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect substance to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECand Lenders.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Bethlehem Steel Corp /De/)
Financial Statements, Reports, etc. Furnish The Debtors will furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Bank:
(a) as soon as practicable, and in any event within 120 90 days (or 105 days if the Debtors shall have duly filed for appropriate extensions with the Securities and Exchange Commission and shall have provided the Bank with a copy thereof) after the end of each fiscal year, a consolidated year of the Debtors Consolidated and consolidating balance sheet sheets and related Consolidated and consolidating income statements of operations, cash flows and owners’ equity the Debtors showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case Debtors as of the close of such fiscal year and the consolidated results of their operations during such year year, a Consolidated and setting forth in comparative form the corresponding figures for the prior fiscal year consolidating statement of shareholders' equity and a Consolidated and consolidating statement of cash flows (or in lieu its then equivalent), as of the close of such fiscal year, all the foregoing financial statements to be prepared in accordance with generally accepted accounting principles consistently applied and audited by Deloitte and Touche or such other independent public accountants acceptable to the Bank (which report shall not contain any qualification) and to be in form reasonably acceptable to the Bank, except that the consolidating financial statements of the Borrower Debtors may be prepared by management in accordance with generally accepted accounting principles consistently applied;
(b) as soon as practicable, and in any event within 45 days (or 50 days if the Restricted SubsidiariesDebtors shall have duly filed for appropriate extensions with the Securities and Exchange Commission and shall have provided the Bank with a copy thereof) after the end of each fiscal quarter, a detailed reconciliation, reflecting (i) Consolidated and consolidating balance sheets and Consolidated and consolidating income statements showing the financial condition at the end of such financial information quarter and results of operation of the Debtors for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts period then ended certified by a Financial Officer of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity each of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception Debtors as to the scope of such audit) to the effect that such consolidated financial statements presenting fairly present, in all material respects, the financial position and results of operations of the Borrower Debtors and its Subsidiaries on a consolidated basis as having been prepared in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiariesgenerally accepted accounting principles consistently applied, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments adjustments, and (ii) a report for each of the Debtors listing, by account debtor, such Debtor's Accounts Receivable (including the name, address, balance due and aging (30-day, 60-day and 90-day, etc.) of all Accounts Receivable and the absence basis for the determination of footnotes)Eligible Accounts;
(c) as soon as practicable, and in any event within 20 days after the end of each month, a borrowing base certificate ("Borrowing Base Certificate") in the form annexed hereto as Exhibit E for the fiscal month of the Debtors just ended, together with an aging summary of all Accounts Receivable;
(d) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by the Debtors with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934;
(e) concurrently with any delivery under (a), (b) or (c) above, certificates of a Financial Officer of each of the Debtors demonstrating compliance, as of the dates of the financial statements being furnished at such time, with the covenants set forth in Article VI hereof;
(f) concurrently with any delivery under (a) or (b) above, a certificate certificates of Crestwood GP or a Financial Officer of each of the Borrower (i) Debtors certifying that to the best of his or her knowledge no Event of Default or event which with the giving of notice or lapse of time or both would constitute such an Event of Default has occurred orand, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(dg) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding as the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Bank may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish The Borrowers shall ---------------------------------- deliver or cause to be delivered to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a1) within 120 Not later than 45 days after the end of each first, second and third fiscal quarter, a copy of Hibbett's 10-Q as filed with the Securities and Exchange Commission or if such filing is no longer required, a balance sheet and a statement of revenues and expenses of Hibbett and its Consolidated Entities on a consolidated basis and a statement of cash flow of Hibbett and its Consolidated Entitles on a consolidated basis for such fiscal quarter and for the period beginning on the first day of the fiscal year and ending on the last day of such fiscal quarter (in sufficient detail to indicate Hibbett's and each Consolidated Entity's compliance with the financial covenants set forth in Section 7.7), together with statements in comparative form for the corresponding periods in the preceding fiscal year, and certified by the president or chief financial officer of Hibbett; each certificate provided pursuant to this clause (1) shall state that, except as disclosed in such certificate no Default has occurred and is continuing as of such date or, if such certificate discloses that a Default has occurred and is continuing as of such date, such certificate shall describe such Default in reasonable detail and state what action, if any, the Borrowers are taking or propose to take with respect thereto.
(2) Not later than 90 days after the end of each fiscal year, a consolidated copy of Hibbett's 10-K as filed with the Securities and Exchange Commission or if such filing is no longer required, financial statements (including a balance sheet sheet, a statement of revenues and related statements expenses, a statement of operations, changes in shareholders' equity and a statement of cash flows and owners’ equity showing the financial position flow) of the Borrower Hibbett and its Subsidiaries and, if different, the Borrower Consolidated Entities on a consolidated and the Restricted Subsidiaries, in each case as of the close of for such fiscal year (in sufficient detail to indicate Hibbett's and each Consolidated Entity's compliance with the consolidated results of their operations during such year and setting financial covenants set forth in this Article 7), together with statements in comparative form the corresponding figures for the prior preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one handyear, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts accompanied by an unqualified opinion of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (standing, which unqualified opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered state in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a consistent basis, and (C) present fairly present, in all material respects, the financial position condition and results of operations of the Borrower Hibbett and its Subsidiaries on a consolidated basis in accordance with GAAP;Consolidated Entities for the periods covered.
(b3) within 60 Together with the financial statements required by paragraphs (1) and (2) above a compliance certificate duly executed by the president or chief financial officer of Hibbett in the form of Exhibit E attached hereto --------- ("Compliance Certificate").
(4) Not later than 90 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated financial projections (including income statements, balance sheet and related statements of operations sheets and cash flows showing flow statements) for the financial position Borrowers or any Consolidated Entity encompassing the next two fiscal years.
(5) Promptly upon receipt thereof, copies of all management or similar letters submitted to the Borrowers or any Consolidated Entity by independent accountants in connection with any annual or interim audit of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as books of the close Borrowers or any Consolidated Entity made by such accountants.
(6) After the filing or receiving thereof, copies of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, reports and notices that any Borrower or other ERISA Affiliate files under ERISA with the financial position and results Internal Revenue Service or the PBGC or the United States Department of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);Labor.
(c7) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to timeAs soon as practicable, such other information regarding the operationsbusiness affairs, business affairs and financial condition or operations of Hibbett or its Consolidated Entities as the Borrower Lender shall reasonably request from time to time or at any time. The Lender shall have no obligation to make Advances at any time at which the Borrowers or any of its Relevant Subsidiaries, or compliance with them is delinquent in the terms preparation and delivery of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borroweritems described above, whether or not such delinquency constitutes a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECDefault.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Company, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 100 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Ernst & Young LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders' equity and cash flows showing the financial position condition of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year year, compared with the consolidated budget for such fiscal quarter as well as the results of its operations and setting forth the operations of its Subsidiaries in comparative form the corresponding figures for the corresponding periods of quarter from the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP the accounting firm (in the case of paragraph (a)) or a Financial Officer (in the case of the Borrower paragraph (ib)) 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) and 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, in the case of a certificate delivered with the financial statements required by paragraph (iia) above, setting forth a computation the Company's calculation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal periodExcess Cash Flow;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution at least 10 days prior to the Borrower commencement of Equity Interests in any Person acquired pursuant to each fiscal year of the Company, a Group Acquisition, in each case if the aggregate consideration detailed consolidated budget for such transaction fiscal year (or, in the case including a projected consolidated balance sheet and related statements of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request projected operations and cash flow as of the Administrative Agent (but not, in the case end of and for each quarter of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date fiscal year and as of the information most recently received pursuant to Section 4.02(e)end of and for such fiscal year and describing the assumptions used for purposes of preparing such budget) and, this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a)promptly when available, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence any significant revisions of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by the Company or any of its Subsidiaries, a copy of any final "management letter" received by any such person from its certified public accountants and the management's response thereto; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Agreement (Flowserve Corp)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly shall furnish such information statements, certificates or other documents received pursuant to the Lendersthis Section 5.04 to each Lender and Issuing Bank):
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Arthur Andersen LLP or other independent public accountants of recognized national re▇▇▇▇▇▇e▇ ▇▇▇▇▇▇al standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders' equity and cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower opining on or certifying such statements (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11, 6.12, 6.13 and 6.14 and (iiix) certifying that in the Mortgage Requirement is satisfied at case of a certificate delivered with the end financial statements required by paragraph (b) above for the second fiscal quarter of each year, setting forth the Borrower's calculation of Excess Cash Flow, and (y) in the case of the applicable certificate delivered pursuant to this paragraph (c) with the financial statements under paragraph (a) above for the fiscal period;year ended December 31, 2001, a reasonably detailed schedule showing the pro forma adjustments made to calculate Consolidated EBITDA for the fiscal quarters ended March 31, 2001 and June 30, 2001, as contemplated by the last sentence of the definition of Consolidated EBITDA (which shall include all pro forma adjustments resulting from the 2001 Cost Reduction Plan calculated as contemplated pursuant to Schedule 5.04(d)(1)),
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)clause (a) above, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such compliance, including without limitation copies financial statements of any flood hazard determination forms Default or Event of Default (which certificate may be limited to the extent required to be by accounting rules or guidelines); and in the case of the certificate delivered pursuant to Section 5.02(cthis paragraph (d) with the financial statements under paragraph (a) above for the fiscal year ended December 31, 2001, such report of such accounting firm shall be substantially in the form of Schedule 5.04(d)(2) and shall be accompanied by the additional report of such accounting firm in the form of 5.04(d)(3).
(e) no later than 45 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the then current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(g) promptly after the receipt thereof by Holdings or the Borrower or any of their respective subsidiaries, a copy of any "management letter" received by any such person from its certified public accountants and the management's response thereto; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Agreement (Koll Donald M)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 75 days after the end of each fiscal year, a consolidated balance sheet and related consolidated statements of operations, cash flows and ownersstockholders’ equity showing the consolidated financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower GrafTech and the Restricted Subsidiaries, in each case Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of GrafTech and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 40 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related consolidated statements of operations and operations, cash flows and stockholders’ equity showing the consolidated financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower GrafTech and the Restricted Subsidiaries, in each case Subsidiaries 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, GrafTech by one of its Financial Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of GrafTech and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP such accountants or a of GrafTech signed by one of its Financial Officer of the Borrower Officers opining on or certifying (iwhich certificate, when furnished by such accountants, may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying (A) 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, (iiB) setting as to computations which are set forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10 and 6.11 and (iiiC) certifying as to the amount of Available Disposition Proceeds, Equity Proceeds and Foreign Transfers as of the last day of the fiscal period reported on in such financial statements and setting forth computations in detail reasonably satisfactory to the Administrative Agent showing all transactions or other events increasing or decreasing such amounts (it being understood that the Mortgage Requirement is satisfied at the end information required by clauses (B) and (C) may be provided in a certificate of the applicable fiscal periodGrafTech signed by one of its Financial Officers instead of from such accountants);
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other publicly available reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orproxy statements and, to the extent such request relates requested by the Administrative Agent, other publicly available materials filed by GrafTech or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to specified information contained any or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in accounting principles used for financial reporting by in accordance with Section 1.04(a)(ii) or any other change in accounting principles and policies from those as in effect on the Perfection CertificateEffective Date, such information) reflecting all changes since the date consolidated financial statements of GrafTech and the information most recently received Subsidiaries delivered pursuant to Section 4.02(e), this Section 5.04(dparagraph (a) or Section 5.10(e(b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such paragraphs had no such change in accounting principles and (ii) concurrently policies been made, then, together with the first delivery of financial statements under Section 5.04(a)pursuant to paragraph (a) and (b) above following such change, a schedule prepared by GrafTech signed by one of its Financial Officers reconciling such changes to what the financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, a copy of an operating and capital expenditure budget of GrafTech on a consolidated basis for such fiscal year;
(g) promptly following the creation of or the initial acquisition of any equity interest in any Subsidiary, a certificate executed of GrafTech signed by a Responsible Officer of GrafTech identifying such new Subsidiary and the Borrower certifying compliance with Section 5.02(c) ownership interest of GrafTech and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)the Subsidiaries therein;
(eh) within 90 days after the beginning of each fiscal year, and within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, in each case, sooner if available), a balance sheet and related statements of operations, cash flows and stockholder’s equity, for such fiscal year or such fiscal quarter and the fiscal year to date through the end of such fiscal quarter, respectively, for each Unrestricted Subsidiary and for each minority interest in respect of which the Loan Parties shall, directly or indirectly, have an aggregate outstanding Investment in excess of $5,000,000;
(i) promptly, a copy of all final reports submitted in connection with any material interim or material special audit made by independent accountants of the books of GrafTech or any Subsidiary;
(j) within 180 days after the beginning of each fiscal year, the statutory accounts of Swissco for such fiscal year, audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized standing internationally or in Switzerland acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such accounts present the financial condition and results of operations of Swissco in accordance with Swiss auditing standards;
(k) within 180 days after the beginning of each fiscal year, the unaudited statutory accounts of Luxembourg Parent and, to the extent available, its covered subsidiaries for such fiscal year; and, in addition, if external audits of the statutory accounts of Luxembourg Parent, and, to the extent applicable, its covered subsidiaries, are available, as promptly as reasonably practicable thereafter; provided that any such external audit shall be conducted by PricewaterhouseCoopers LLP or other independent public accountants of recognized standing internationally or in Luxembourg acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such accounts present the financial condition and results of operations of Luxembourg Parent and, to the extent applicable, its covered subsidiaries in accordance with Luxembourg auditing standards;
(l) within 180 days after the beginning of each fiscal year, the unaudited statutory accounts of Luxembourg Holdco and, to the extent available, its covered subsidiaries for such fiscal year; and, in addition, if external audits of the statutory accounts of Luxembourg Holdco, and, to the extent applicable, its covered subsidiaries, are available, as promptly as reasonably practicable thereafter; provided that any such external audit shall be conducted by PricewaterhouseCoopers LLP or other independent public accountants of recognized standing internationally or in Luxembourg acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such accounts present the financial condition and results of operations of Luxembourg Holdco and, to the extent applicable, its covered subsidiaries in accordance with Luxembourg auditing standards;
(m) within 120 days after the beginning of each fiscal year, each Borrower that is a Domestic Subsidiary shall deliver to the Administrative Agent a bring-down Perfection Certificate of such Borrower signed by one of its Financial Officers setting forth any information required so that the Perfection Certificate(s) delivered under the Security Agreements on the Effective Date shall be complete and correct as of the date of such bring-down Perfection Certificate;
(n) promptly following any request therefor, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and
(o) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower GrafTech or any of its Relevant Subsidiaries, Subsidiary or compliance with the terms of any Loan Document, or such consolidating financial statements, or such financial statements showing the results of operations of any Unrestricted Subsidiary, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to acting through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents may reasonably request. Information required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents 5.04(d) shall be deemed to have been delivered on the date on which GrafTech provides notice to the Administrative Agent under this Agreement that such information has been posted on the date SEC website on the Internet at ▇▇▇.▇▇▇.▇▇▇, or at another website identified in such documents are made publicly available notice and accessible by the SECLenders without charge, provided that such notice may be included in a certificate delivered pursuant to Section 5.04(c).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a1) within 120 ninety (90) days after following the end of each fiscal yearyear (or within one hundred twenty (120) days following the end of the fiscal year ending December 31, 2023):
(a) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower Holdings and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial year, which consolidated balance sheets and related statements of the Borrower operations, cash flows and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) owners’ equity will be audited by independent public accountants of recognized national standing standing, or such other accountants as are reasonably acceptable to the Administrative Agent Agent, and accompanied by an opinion of such accountants (which opinion shall not be without subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to resulting solely from an upcoming maturity date under the scope of Term Loan Credit Agreement or the Revolving Facility occurring within one year from the time such auditopinion is delivered)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP;; and
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated unaudited consolidating balance sheet sheets and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case Borrowers as of the close of such fiscal quarter year and the consolidated consolidating results of their operations during such fiscal quarter year, which consolidating balance sheets and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial related statements of the Borrower operations and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all cash flows will be certified by Crestwood GP or a Financial Responsible Officer of the Borrower, Holdings on behalf of the Borrower, Borrowers as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries Borrowers on a consolidated consolidating basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the applicable financial statements delivered pursuant to this clause (1)(a) and (b) being the “Annual Financial Statements”);
(2) beginning with the fiscal month ending October 31, 2023 and within thirty (30) days following the end of each fiscal month thereafter (for the avoidance of doubt, including the last month of the fiscal year) (or, in the case of the fiscal month ending (a) October 31, 2023, no later than December 31, 2023, (b) November 30, 2023, no later than January 31, 2024, (c) December 30, 2023, no later than February 15, 2024 and (d) January 31, 2024, no later than March 15, 2024), unaudited consolidating balance sheets and related statements of operations and cash flows showing the financial position of each Borrower as of the close of such fiscal month and the consolidating results of its operations during such fiscal month and, in each case, the then-elapsed portion of the fiscal year and, commencing on November 30, 2024 setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal month, which consolidating balance sheets and related statements of operations and cash flows will be certified by a Responsible Officer of Holdings on behalf of the Borrowers as fairly presenting, in all material respects, the financial position and results of operations of the Borrowers on a consolidating basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Monthly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”);
(3) concurrently with any delivery of financial statements under (a) or (b) aboveRequired Financial Statements, a certificate of Crestwood GP or Compliance Certificate signed by a Financial Officer of the Borrower Holdings:
(ia) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred or, if such an Event of Default or Default has occurredand is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(b) setting forth in reasonable detail calculations of Capital Expenditures for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year;
(c) attaching and certifying to a list of all Immaterial Subsidiaries of the Borrowers, that each Subsidiary of the Borrowers set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (2) of the definition of the term “Immaterial Subsidiary”; and
(d) in the case of Annual Financial Statements only, attaching and certifying to a list identifying each application for the registration of any Intellectual Property Rights (including any “intent to use” trademark application for which registration has issued) filed by any Loan Party with the U.S. Patent and Trademark Office, the U.S. Copyright Office or the Canadian Intellectual Property Office which has not previously been disclosed to the Administrative Agent;
(4) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation;
(5) within ninety (90) days following the end of each fiscal year ended:
(i) consolidated annual budgets for Holdings and its Subsidiaries for such fiscal year and (ii) setting forth the projected revenue, gross profit, operating expenses, Loan balance and EBITDA (calculated as earnings before interest, taxes, depreciation and amortization in a computation of manner either (A) consistent with the Financial Performance Covenants in detail reasonably satisfactory manner provided to the Administrative Agent and (iii) certifying that prior to the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, Closing Date or (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution reasonably acceptable to the Borrower of Equity Interests in any Person acquired pursuant to a Group AcquisitionAdministrative Agent), in each case if of the aggregate consideration Borrowers on a monthly basis for such transaction (orfiscal year, in the form customarily prepared by Holdings (each, a “Budget”) and
(b) projected Excess Availability on a monthly basis (showing the daily average within such month) in such fiscal year, which Budget and projected Excess Availability will in each case be accompanied by the statement of clause a Financial Officer of Holdings on behalf of Holdings to the effect that the Budget and projected Excess Availability are based on assumptions believed by Holdings to be reasonable as of the date of delivery thereof;
(D), such Group Acquisition6) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but notCollateral Agent, in concurrently with the case delivery of such request, more often than annually)the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) ), or in the case of any non-U.S. Loan Party, updated information relating to the Collateral consistent with such information provided on the Closing Date, in each case, reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dparagraph (6) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)5.10;
(e7) promptly, from time to time, such other information regarding the operations, business affairs affairs, pension profile and financial condition of the Holdings, any Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsin each case, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(8) promptly upon the reasonable request of the Administrative Agent (so long as the following are obtainable using commercially reasonable efforts), copies of any documents described in Section 101(k)(1) of ERISA that Holdings or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if Holdings or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, Holdings or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof from the applicable administrator or sponsor of the applicable Multiemployer Plan; and
(f9) no later than one hundred [reserved]; and
(10) Holdings shall deliver to the Administrative Agent a Borrowing Base Certificate and twenty (120) days following the first day of each fiscal year of the Borrowerfinancial and collateral reports described on Schedule 5.04(10), a budget for in each case at the times and frequency set forth in such fiscal year in form customarily prepared by Schedule. Anything to the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year)contrary notwithstanding, the obligations in clauses (a), (b1) and (f2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower Holdings and the Restricted its Subsidiaries by furnishing (1) the applicable financial statements of Crestwood Equity Partnersany other Parent Entity or (2) Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that that:
(i) with respect to each of the foregoing clauses (1) and (2), (a) to the extent such information relates to Crestwood Equity Partnersanother Parent Entity, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, such information is accompanied by consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partnerssuch Parent Entity, on the one hand, and the information relating to the Borrower Holdings and the Restricted its Subsidiaries on a standalone basis, on the other hand; provided further that , and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date under the Term Loan Credit Agreement or the Revolving Facility occurring within one year from the time such documents opinion is delivered)) (it being understood and agreed that if, in compliance with this paragraph, (x) Holdings provide audited financial statements of any other Parent Entity and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to Holdings, (y) Holdings provide unaudited financial statements of such other Parent Entity in lieu of information required to be provided under Section 5.04(2)), no such unaudited financial information shall be required with respect to Holdings and (z) Holdings provide a Budget of such Parent Entity in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to Holdings; and
(ii) for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z), (i) 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 to such Parent Entity, on the one hand, and the information relating to Holdings and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date under the Term Loan Credit Agreement or the Revolving Facility occurring within one year from the time such opinion is delivered)). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of Holdings and its Subsidiaries so long as such financial statements include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of Holdings and its Subsidiaries. Documents required to be delivered pursuant to this Section 5.04 are included may be delivered electronically in materials filed accordance with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECSection 10.01(5).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto;
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of by any Lender); and
(f) no later than one hundred , all documentation and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains such Lender reasonably requests in reasonable detail order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the differences between the information relating USA PATRIOT Act. Documents required to Crestwood Equity Partners, on the one hand, and the information relating be delivered pursuant to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that this Section 6.04 (to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, such documents shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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 under this Agreement 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 (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of 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 upon the written request of the Administrative Agent (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 date first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuer and the Lenders to treat such documents Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made publicly available by through a portion of the SECPlatform designated “Public Side Information;” and (z) the Administrative Agent and the Joint Lead 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: Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. Furnish The Borrower will furnish ---------------------------------- to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) as soon as available, and in any event within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related consolidated statements of operationsoperations and cash flows, cash flows and owners’ equity showing the consolidated financial position of the Borrower and its Consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations and cash flows during such year and year, in each case setting forth in comparative form the corresponding figures for the prior preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another nationally recognized "Big Six" independent accountants of recognized national standing reasonably acceptable to the Administrative Agent public accounting firm and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) as soon as available, and in any event within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related consolidated statements of operations and cash flows flows, showing the consolidated financial position of the Borrower and its Consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and quarter, the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures consolidated cash flows for the corresponding periods then elapsed portion of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Default or Event of Default or Default has occurred or, if such an a Default or 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower, substantially in the form of Exhibit K hereto, (i) upon setting forth computations in reasonable detail satisfactory to the consummation of (A) any Permitted Business AcquisitionAgent demonstrating compliance with the covenants contained in Sections 6.15 and 6.16, (Bii) stating whether, since the acquisition date of the most recent Required Financial Statements previously delivered, there has been any Relevant Subsidiarymaterial change in the generally accepted accounting principles applied in the preparation of the Borrower's financial statements and, if so, describing such change, (Ciii) any Person becoming a Relevant Subsidiary or (D) the contribution to containing summaries of accounts payable agings, accounts receivable agings, and inventory of the Borrower on a stand-alone basis, (iv) in the case of Equity Interests in any Person acquired pursuant to a Group Acquisitioncertificate delivered concurrently with a certificate under paragraph (a) above, in each case if setting forth the aggregate consideration Excess Cash Flow for such transaction the preceding fiscal year (or, in the case of clause the fiscal year ending March 31, 1997, for the period from the Closing Date through March 31, 1997) and a reasonably detailed calculation thereof, (D), such Group Acquisitionv) exceeds $25.0 million, or upon the reasonable request a comparison of the Administrative Agent (but notactual results during the period covered by such financial statements to those originally budgeted by the Borrower prior to the beginning of the applicable fiscal year, along with management's discussion and analysis of variances between such actual and budgeted results, as well as variances between actual results for such period and actual results for the same period in the case previous fiscal year and (vi) a list of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes any significant sales contracts awarded or terminated since the date of the information most recently received pursuant to Section 4.02(e)recent Required Financial Statements previously delivered, this Section 5.04(d) or Section 5.10(e) and including a description thereof in reasonable detail (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of provided that the Borrower certifying compliance with Section 5.02(c) and providing evidence of may disclose orally, rather than in writing, any such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(csales information that the Borrower deems highly sensitive from a competitive standpoint);
(e) as soon as available, and in any event within 30 days after the end of each calendar month (other than the last month of any fiscal quarter), a copy of the unaudited consolidated financial statements of the Borrower and its Consolidated Subsidiaries as of the end of such calendar month and for the portion of the fiscal year then ended, containing a balance sheet, statement of operations and statement of cash flow, in each case setting forth in comparative form the figures for the corresponding period of the preceding fiscal year;
(f) promptly upon completion, but in any event not later than 30 days after the commencement of the 1998 fiscal year and each subsequent fiscal year, a copy of projections by the Borrower of its consolidated balance sheet and related consolidated statements of operations and cash flows for such fiscal year (including all material assumptions to such projections) and a budget for such fiscal year, all in form customarily prepared by the Borrower's management, such projected financial statements to be accompanied by a certificate of a Financial Officer to the effect that such projected financial statements have been prepared in good faith, based on assumptions that the Borrower believes to be reasonable and based on the best information available to the Borrower and that such Financial Officer has no reason to believe they are misleading in any material respect in light of the circumstances existing at the time of preparation thereof;
(g) as soon as available, (i) a copy of each financial statement, report, notice or proxy statement sent by the Parent, the Borrower or any of the Subsidiaries to their respective stockholders in their capacity as stockholders, (ii) a copy of each regular, periodic or special report, registration statement, or prospectus filed by the Parent, the Borrower or any of the Subsidiaries with any securities exchange or the SEC, (iii) any material order issued by any court, governmental authority, or arbitrator in any material proceeding to which the Parent, the Borrower or any of the Subsidiaries is a party and (iv) copies of all press releases and other statements made available generally by the Parent, the Borrower or any of the Subsidiaries to the public generally concerning material developments in the Parent's, the Borrower's or such Subsidiary's business;
(h) as soon as available, and in any event within 15 days of receipt, any final management letter issued or provided by the auditors of the Borrower or any Subsidiary;
(i) concurrently with any delivery to any Subordinated Lender or holder of Permitted Senior Preferred Stock or 104 Permitted Junior Preferred Stock, a copy of any materials, information, notices (including any notice of an event of default or potential event of default) or correspondence delivered to any such Subordinated Lender or holder;
(j) within 30 days after the Closing Date, the unaudited balance sheet of the Borrower and its Consolidated Subsidiaries as of July 31, 1996, certified by a Financial Officer of the Borrower as fairly presenting the consolidated financial position of the Borrower and its Consolidated Subsidiaries in accordance with GAAP; and
(k) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Parent, the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Agent or such consolidating financial statements, as in each case the Administrative Agent any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) as soon as available, but in any event, within 120 days after the end of each fiscal year, Fiscal Year: a consolidated balance sheet and related statements of operations, cash flows and ownersstockholders’ equity and cash flows, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year Fiscal Year and the consolidated results of their the operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and its Subsidiaries during such Fiscal Year audited by auditors of recognized national standing, and a written statement of the Restricted SubsidiariesBorrower’s management setting forth a discussion of the Borrower’s consolidated and consolidating financial condition, changes in financial condition and results of operations, in each case, only to the extent the same is made available on SEDAR;
(b) as soon as available, but in any event within sixty (60) days after the end of each Fiscal Quarter, other than the fourth (4th) Fiscal Quarter of each Fiscal Year: an unaudited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows (including a detailed reconciliationcomparison to the previous year’s actual results and current year’s budget), reflecting such showing the financial information for condition of the Borrower and its Subsidiaries as of the Restricted Subsidiaries, on close of such Fiscal Quarter and the one hand, and results of the operations of the Borrower and its Subsidiaries during such Fiscal Quarter and the Subsidiaries, on then-elapsed portion of the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries Fiscal Year (if any) from it being understood that such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion information shall be without in reasonable detail and certified by a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity Financial Officer of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception Borrower, as to the scope of such audit) to the effect that such consolidated financial statements fairly present, presenting in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries Subsidiaries, on the pro forma basis described in paragraph (a) above, on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesnotes); and a written statement of the Borrower’s management setting forth an overview of the Borrower’s financial performance for such Fiscal Quarter and, a discussion of the outlook for Borrower’s business, in each case, only to the extent the same is made available on SEDAR;
(c) concurrently with any delivery of financial statements of the Borrower under paragraphs (a) or and (b) above, a duly completed compliance certificate in the form of Crestwood GP or Exhibit D (a “Compliance Certificate”), with appropriate insertions, dated the date of such quarterly statements and signed by a Financial Officer of the Borrower (i) certifying Borrower, containing a written statement to the effect that no such officer has not become aware of any Default or Event of Default or Default that has occurred or, if there is any such an Event of Default or Default has occurredevent, specifying describing it and the nature steps, if any, being taken to cure it, and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a detailed computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end each of the applicable fiscal periodfinancial covenant ratios and restrictions set forth in Article VII;
(d) (i) upon as soon as available, but in any event no later than 120 days after the consummation end of (A) any Permitted Business Acquisitioneach Fiscal Year, (B) the acquisition annual business plan approved by the Borrower’s board of any Relevant Subsidiarydirectors, (C) any Person becoming consisting of a Relevant Subsidiary or (D) the contribution to consolidated balance sheet, cash flow statement, income statement of the Borrower on a consolidated basis, covering the one-year period until the next Fiscal Year end and prepared on a quarterly basis, a detailed description of Equity Interests in any Person acquired the sources and uses of funds permitted hereunder as Permitted Investments pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction paragraph (or, in the case f) of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received Permitted Investments and as Permitted Indebtedness pursuant to Section 4.02(e7.01(h), this Section 5.04(d) or Section 5.10(e) and ;
(iie) concurrently with the delivery of the reporting set out in paragraph (b) above, a schedule setting out the EBITDA, for the applicable reporting period, of the Loan Parties in aggregate and Non-Guarantor Subsidiaries on a per entity basis, pursuant to the best estimate of the management of the Borrower in accordance with the public reporting of the Borrower’s financial results, and further, concurrently with the delivery of the financial statements under Section 5.04(ain paragraph (a) above, a schedule setting out the aggregate value of all real and personal property and other assets owned by each Non-Guarantor Subsidiary on a per entity basis, and the EBITDA, for the applicable reporting period, of the Loan Parties in aggregate and Non-Guarantor Subsidiaries on a per entity basis;
(f) within thirty (30) days after the end of each calendar month, or upon request by the Administrative Agent (provided that the Administrative Agent shall not make more one lxvi
(1) request per week unless an Event of Default has occurred and is continuing), a certificate Borrowing Base Certificate dated as of such month-end and executed by a Responsible Financial Officer on behalf of the Borrower; provided that (i) Borrower certifying compliance with Section 5.02(cmay deliver a Borrowing Base Certificate more frequently if it chooses; and (ii) and providing evidence at any time a Default or an Event of such complianceDefault exists, including without limitation copies of any flood hazard determination forms required Administrative Agent may require Borrower to be delivered pursuant to Section 5.02(c)deliver Borrowing Base Certificates more frequently;
(eg) promptlyconcurrently with the delivery of the Borrowing Base Certificate required by paragraph (f), a schedule of Eligible Accounts and Eligible Inventory as of the last Business Day of such month, in form reasonably satisfactory to Administrative Agent, setting forth a detailed aged trial balance of all of Borrower’s then existing Eligible Accounts and Eligible Inventory, specifying the name of and the balance due from (and any rebate due to) each Account Debtor (with respect to an Eligible Account) obligated on any Eligible Account so listed, and a schedule of all bank statements and account balances with respect to the Excluded Accounts and with respect to the Deposit Accounts described in Section 6.20(d), as of the last Business Day of such month;
(h) concurrently with the delivery of the reporting set out in paragraph (b) above, internally prepared operational reporting package evidencing Borrower’s progress relative to its transition plan and financial projections; and
(i) promptly from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesLoan Parties, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Company, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Purchaser:
(ai) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operations, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Ernst & Young LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Purchaser and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(bii) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations operations, stockholders' equity and cash flows showing the financial position condition of the Borrower Company and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(ciii) concurrently with any delivery of financial statements under sub-paragraph (ai) or (bii) above, a letter of the accounting firm or certificate of Crestwood GP or a the Financial Officer reporting on or certifying such statements (which letter, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) reporting that they are unaware that any Event of Default has occurred, in the case of the Borrower (i) accounting firm, or certifying that no Event of Default or Default has occurred occurred, in the case of the Financial Officer, 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(div) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(iv) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution prior to the Borrower beginning of Equity Interests in any Person acquired pursuant to each fiscal year, a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request copy of the Administrative Agent (but not, in the case budget for its consolidated balance sheet and related statements of income and cash flows for each quarter of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);fiscal year; and
(evi) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Purchaser may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Secured Pik Note Purchase Agreement (Neenah Foundry Co)
Financial Statements, Reports, etc. Furnish In the case of each Borrower, furnish to the Administrative Agent (which will promptly furnish such information for distribution to the Lenders):each Lender:
(a) within 120 days after the end of each fiscal year, a its consolidated balance sheet and the related consolidated statements of operations, income and cash flows and owners’ equity showing the its consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case condition as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing reasonably acceptable to selected by the Administrative Agent Company and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the present its financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP or SAP, as applicable (it being agreed that the requirements of this paragraph may be satisfied by the delivery pursuant to paragraph (e) below of an annual report on Form 10-K containing the foregoing);
(b) within 60 90 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related consolidated statements of operations income and cash flows showing the its consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case condition as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, the presenting its financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (or SAP, as applicable, subject to normal year-end audit adjustments and (it being agreed that the absence requirements of footnotesthis paragraph may be satisfied by the delivery pursuant to paragraph (e) below of a quarterly report on Form 10-Q containing the foregoing);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) as soon as available and in any event within 90 days after the end of each fiscal year, (i) upon the consummation Statement of Actuarial Opinion of each of the Restricted Subsidiaries for such fiscal year and as filed with the Applicable Insurance Regulatory Authority and (A) any Permitted Business Acquisition, (Bii) the acquisition Annual Statement of any Relevant Subsidiaryeach of the Restricted Subsidiaries for such fiscal year and as filed with the Applicable Insurance Regulatory Authority, together with, in the case of the statements delivered pursuant to clause (Cii) any Person becoming above, a Relevant Subsidiary or (D) the contribution certificate of a Financial Officer to the Borrower effect that such statements present fairly the statutory assets, liabilities, capital and surplus, results of Equity Interests operations and cash flows of such Insurance Subsidiary in accordance with SAP;
(e) promptly after the same become publicly available, copies of all reports on forms 10-K, 10-Q and 8-K filed by it with the SEC, or any Person acquired pursuant Governmental Authority succeeding to a Group Acquisitionany of or all the functions of the SEC, in each case if the aggregate consideration for such transaction (or, in the case of clause (D)the Company, such Group Acquisition) exceeds $25.0 millioncopies of all reports distributed to its shareholders, or upon the reasonable request of the Administrative Agent (but not, in as the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(ef) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or as any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case Lender shall reasonably request through the Administrative Agent may reasonably request (for itself or on behalf of any Lender)Agent; and
(fg) no later than one hundred and twenty (120) days following the first day concurrently with any delivery of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses under paragraph (a), ) or (b) and (f) of this Section 5.04 may be satisfied with respect to financial information above, calculations of the Borrower financial tests referred to in Sections 5.10, 5.14 and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents 5.16. Information required to be delivered pursuant to this Section 5.04 are included in materials filed with the SEC, such documents 5.03 shall be deemed to have been (i) delivered to the Lenders on the date on which the Company provides written notice to the Administrative Agent under this Agreement that such information has been posted on the Company's website on the Internet at http://www.thehartford.com or is available on the website of ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇://▇▇▇.sec.gov (to the extent such information has been ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ilable as described in such notice), or (ii) distributed to each Lender on the date on which the Administrative Agent shall have posted such documents are made publicly available information on an IntraLinks or similar site to which the Lenders have been granted access; provided that the Company shall deliver paper copies of such information to any Lender that requests such delivery within 5 Business Days after such request. Information required to be delivered pursuant to this Section 5.03 may also be delivered by electronic communications pursuant to procedures approved by the SECAdministrative Agent.
Appears in 1 contract
Sources: Credit Facility Agreement (Hartford Financial Services Group Inc/De)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 one hundred and twenty (120) days after the end of each fiscal yearyear of Ultimate Parent, if not filed electronically with the SEC and publicly available for retrieval by the Lenders, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the consolidated financial position of the Borrower Ultimate Parent and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations and cash flows during such year and and, commencing with the fiscal year ending December 31, 2022, setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited year, with all financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries provided under this paragraph (if any) from such consolidated financial statementsa), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified in any material respect, other than an exception or explanatory paragraph with respect a qualification resulting solely from the classification of any of the Loans as short-term indebtedness during that twelve-month period prior to the maturity Maturity Date or a breach or anticipated breach of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditFinancial Covenants) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations and cash flows of the Borrower Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal yearyear of Ultimate Parent, if not filed electronically with the SEC and publicly available for retrieval by the Lenders, a consolidated balance sheet and related statements of operations and cash flows showing the consolidated financial position of the Borrower Ultimate Parent and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations and cash flows during such fiscal quarter and the then-elapsed portion of the fiscal year and and, commencing with the fiscal quarter ending March 31, 2023, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the BorrowerUltimate Parent, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower in the form of Exhibit I (each, a “Compliance Certificate”) (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) setting forth a computation as and at the end of such fiscal quarter or fiscal year, as the case may be, reasonably detailed calculations of the Financial Performance Covenants amount of the Available Amount and specifying any applicable utilizations of the Available Amount during such fiscal quarter or fiscal year, as applicable, and (iii) commencing with the first fiscal period ending after the Effective Date, setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d6.12(a) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (orcase, to the extent such request relates to specified information contained then in effect); provided that if the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of consolidated financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) Ultimate Parent and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be its Subsidiaries delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses clause (a), ) or (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request above will differ from the Administrative Agentconsolidated results of operations and financial position of Holdings and its Subsidiaries (as a stand-alone company) for such applicable period, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SECthen, such documents certificate shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.include a IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" ""
Appears in 1 contract
Sources: Credit Agreement (Fathom Digital Manufacturing Corp)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 100 days after the end of each fiscal year, a its audited consolidated balance sheet sheets and related statements of operationsincome and cash flow, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet sheets and related statements of operations income and cash flows flow, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf Financial Officers of the Borrower, Borrower as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.06, 6.13, 6.14 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.15;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Permitted Business AcquisitionGovernmental Authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Agent or such consolidating financial statements, as in each case the Administrative Agent any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Choice Hotels Holdings Inc)
Financial Statements, Reports, etc. Furnish Borrower shall furnish to the Administrative Agent (which will promptly furnish with a copy for each Bank to be forwarded by Administrative Agent) the following, each in such information to the Lenders):form and such detail as Administrative Agent shall reasonably request:
(ai) within 120 Within fifty (50) days after the end last day of each fiscal yearquarter of Borrower, (A) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position copy of the Financial Statements of Borrower for such quarter and for the fiscal year to date (including consolidated Financial Statements for Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect certified by the president or chief financial officer of Borrower to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, the financial position and condition, results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet other information reflected therein and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-end audit adjustments adjustments) and (B) the absence of footnotes)Form 10-Q Report filed by Borrower with the Securities and Exchange Commission for such quarter;
(cii) concurrently with any delivery Within ninety-five (95) days after the close of financial statements under each fiscal year of Borrower, (aA) or (b) above, a certificate of Crestwood GP or a Financial Officer copies of the audited Financial Statements of Borrower for such year (iincluding consolidated Financial Statements for Borrower and its Subsidiaries), prepared by independent certified public accountants acceptable to Bank, (B) certifying copies of the unqualified opinions (or qualified opinions reasonably acceptable to the Banks) and management letters delivered by such accountants in connection with all such Financial Statements, (C) certificates of all such accountants to Bank stating that in making the examination necessary for their opinion they 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, an Event of Default or Default has occurred and is continuing, a statement as to the nature thereof (or other certificates of such accountants reasonably acceptable to Required Banks) and (D) the Form 10-K Report filed by Borrower with the Securities and Exchange Commission for such year;
(iii) Contemporaneously with the quarterly and year-end financial statements required by the foregoing clauses (i) and (ii), a certificate of the president or chief financial officer of Borrower in such detail as Administrative Agent may reasonably request which (A) sets forth the calculations conducted to verify that Borrower is in compliance with each of the financial covenants set forth in Paragraph 5.02(m) and stating that no Event of Default and no Default has occurred and is continuing, or, if any such an Event of Default or Default has occurredoccurred and is continuing, specifying a statement as to the nature and extent thereof and any corrective what action taken or proposed Borrower proposes to be taken take with respect thereto, (iiB) setting forth a computation states that the Year 2000 remediation efforts of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent Borrower and its Subsidiaries are proceeding as scheduled, and (iiiC) certifying that indicates whether an auditor, regulator or third party consultant has issued a management letter or other communication regarding any Material Adverse Effect the Mortgage Requirement is satisfied at the end of the applicable fiscal periodYear 2000 exposure, program or progress could have on Borrower and its Subsidiaries taken as a whole;
(div) As soon as available and in no event later than fifteen (i15) upon days after the consummation last day of each fiscal month, (A) agings of Borrower's and its Subsidiaries' accounts receivable and accounts payable as of the last day of each month, (B) a report of Borrower's and its Subsidiaries' inventory as of the last day of such month, and (C) a certificate in the form of Exhibit K (or other form acceptable to Administrative Agent), appropriately completed (a "Borrowing Base Certificate"), which sets forth the calculation of the Borrowing Base as of such last day of such month, certified by the chief financial officer or treasurer of Borrower;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of Borrower knows of the occurrence or existence of (A) any Permitted Business Acquisition, Reportable Event under any Employee Benefit Plan or Multiemployer Plan; (B) the acquisition of any Relevant Subsidiaryactual or threatened litigation, (C) any Person becoming a Relevant Subsidiary suits, claims or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the disputes against Borrower or any of its Relevant Subsidiaries involving potential monetary damages payable by Borrower or any of its Subsidiaries of $1,000,000 or more (alone or in the aggregate); (C) any other event or condition which could reasonably be expected to have a Material Adverse Effect; or (D) any Event of Default or Default; the statement of the president or chief financial officer of Borrower setting forth details of such event, condition, Event of Default or Default and the action which Borrower proposes to take with respect thereto;
(vi) As soon as possible and in no event later than five (5) Business Days after they are sent, made available or filed, copies of all registration statements and reports filed by Borrower with the Securities and Exchange Commission (including 8Q reports) and all reports, proxy statements and financial statements sent or made available by Borrower to its shareholders generally;
(vii) As soon as possible and in no event later than five (5) Business Days after they are filed, copies of all IRS Form 5500 reports for all Employee Benefit Plans required to file such form; and
(viii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or any of its Subsidiaries, or and compliance by Borrower and its Subsidiaries with the terms of any Loan Document, or such consolidating financial statements, this Restated Credit Agreement and the other Credit Documents as in each case the Administrative Agent may from time to time reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent and each Bank (which will promptly furnish it being understood that any such information financial statements or reports furnished to the LendersAgent and the Banks pursuant to the five-year Credit Agreement shall be deemed also to be furnished hereunder):
(a) within 120 90 days after the end of each fiscal yearyear of the Borrower, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position sheets of the Borrower and its Subsidiaries andconsolidated subsidiaries, if differentthe related consolidated statements of operations and the related consolidated statements of stockholders’ equity and cash flows, showing the financial condition of the Borrower and the Restricted Subsidiaries, in each case its consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from all such consolidated financial statements), all (except with respect to such reconciliation) statements audited by and accompanied by the report thereon of Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Banks and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPbasis;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, a consolidated balance sheet sheets and related consolidated statements of operations income, retained earnings and cash flows flows, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Borrower as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower opining on or certifying such statements (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.01(a) and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal periodb)(v), 6.03 and 6.05;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall material periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any governmental authority succeeding to any of Equity Interests in or all the functions of said Commission, or with any Person acquired pursuant national securities exchange, or distributed to a Group Acquisitionits public shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly after the same become publicly available, copies of all material reports pertaining to any change in ownership filed by the Borrower or any Subsidiary with any Governmental Authority; and
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Agent or such consolidating financial statements, as in each case the Administrative Agent any Bank may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) within 120 100 days after the end of each fiscal year, a its audited consolidated balance sheet sheets and related statements of operationsincome and cash flow, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Lender and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet sheets and related statements of operations income and cash flows flow, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf Financial Officers of the Borrower, Borrowers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent Lender demonstrating compliance with the covenants contained in Sections 5.06, 5.13, 5.14 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period5.15;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Permitted Business AcquisitionGovernmental Authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower shall furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) i. within 120 90 days after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operationsincome and changes in financial position, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by an independent accountants public accountant of recognized national standing reasonably acceptable to the Administrative Agent Lender and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied;
ii. within 45 days after the end of each fiscal quarter of each fiscal year and within 30 days after the end of each month, its consolidated balance sheets and related statements of income and within 45 days after the end of each fiscal quarter of each fiscal year its statements of changes in financial position, all such statements showing the financial condition of the Borrower and its consolidated subsidiaries as of the close of such month or fiscal quarter, as applicable, and the results of its operations and the operations of such subsidiaries during such month or fiscal quarter, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence omission of footnotes)notes;
(c) iii. concurrently with any delivery of the quarterly or year-end financial statements under (a) or (b) above, a certificate of Crestwood GP or a the Financial Officer of the Borrower opining on or certifying such statements (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent and Lender demonstrating compliance with the covenants contained in Sections 6.9 through 6.12, inclusive;
iv. Within thirty (iii30) certifying that the Mortgage Requirement is satisfied at days after the end of each month, the applicable fiscal period;
Borrowers shall deliver to Lender a borrowing base certificate in the form of Exhibit B hereto (dthe "Borrowing Base Certificate") (i) upon detailing the consummation Borrowers' Eligible Accounts Receivable as of (A) any Permitted Business Acquisitionthe last day of such month, (B) the acquisition certified as complete and correct on behalf of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionby the chief executive officer, in each case if the aggregate consideration for such transaction (orchief financial officer, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, controller or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a other Responsible Officer of the Borrower, respectively. In addition, each Borrowing Base Certificate shall have attached to it such additional schedules and/or other information as the Lender may reasonably request including, without limitation, an accounts receivable aging report. If the Borrower certifying compliance with Section 5.02(cfails to deliver any such Borrowing Base Certificate within ten (10) and providing evidence of days after receiving notice from Lender that Borrower has not delivered a Borrowing Base Certificate within the time period described above, then the Borrowing Base shall be deemed to be $0 until such compliancetime as the Borrower delivers such required Borrowing Base Certificate;
v. promptly after the same become publicly available, including without limitation if applicable, copies of all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any flood hazard determination forms required governmental authority succeeding to be delivered pursuant any of or all the functions of said Commission, or with any national securities exchange, or distributed to Section 5.02(c);its shareholders, as the case may be; and
(e) vi. promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiariessubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Lender may reasonably request request, including, but not limited to (for itself or on behalf i) an annual budget with respect to the operations of any Lender); and
(f) no later than one hundred and twenty (120) Borrower, delivered within 90 days following after the first day end of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (fii) the performance of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries an annual collateral exam by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available collateral examiner designated by the SECLender.
Appears in 1 contract
Sources: Credit Agreement (Birner Dental Management Services Inc)
Financial Statements, Reports, etc. Furnish Deliver to the ---------------------------------- Administrative Agent (which will promptly furnish such information to and each of the Lenders)::
(a) within 120 ninety-five (95) days after the end of each fiscal year, a the Parent's and its Subsidiaries' consolidated balance sheet sheets and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity flows, showing the financial position condition of the Borrower Parent and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form year, the corresponding figures for the prior fiscal year (or in lieu of such audited financial consolidated statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information Parent to be audited for the Borrower Parent and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the its Subsidiaries by their current independent auditors or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness maturesCases or a going concern qualification) and without any qualification or exception as to the scope be certified by a Financial Officer of such audit) Parent to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 fifty (50) days after the end of each of fiscal quarter (including the first three fourth fiscal quarters quarter) of each fiscal year, a the Parent's and its Subsidiaries consolidated balance sheet sheets and related statements of operations income, stockholders' equity and cash flows flows, showing the financial position condition of the Borrower Parent and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all each certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, Parent as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) aboveabove as applicable, (i) a certificate of Crestwood GP or a Financial Officer of the Borrower Parent certifying such statements and (iA) 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 and is continuing, or, if such an Event of Default or Default event has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, thereto and (iiB) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the provisions of Sections 6.3, 6.4, 6.5 and 6.10 and (iiiii) certifying that the Mortgage Requirement is satisfied at the end a certificate of the applicable fiscal period------------ --- --- ---- Parent's accountants accompanying the audited consolidated financial statements delivered under paragraph (a) above certifying that, in the course of the regular audit of the business of the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than thirty (30) days after the end of each month (other than the last month of a fiscal quarter): (i) upon the consummation unaudited monthly balance sheets and related statements of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year, each certified by a Financial Officer of Parent as fairly presenting the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments, together with a certificate of a Financial Officer of the Parent setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with Section ------- 6.5; and (ii) a reconciliation of the results of the Borrowers' business --- operations for the preceding month as compared to the corresponding period in the forecast;
(e) as soon as possible, and in any event within thirty (30) days of the Closing Date, a consolidated pro forma balance sheet of the Borrowers' financial condition as of October 15, 2001;
(f) concurrently with any delivery of financial statements under paragraph (b) above, updates, if any, of the forecast delivered to the ------------- Administrative Agent pursuant to Section 4.1(i), satisfactory in form and -------------- substance to the Administrative Agent;
(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 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;
(h) as soon as available and in any event (A) within thirty (30) days after any Permitted Business AcquisitionBorrower or the Guarantors or any of their ERISA Affiliates knows or has reason to know that any Termination Event described in clause (i) of the ---------- definition of Termination Event with respect to any Single Employer Plan of any of the Borrowers or the Guarantors or such ERISA Affiliate has occurred and (B) within ten (10) days after any of the Borrowers or the Guarantors or any of their ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such Plan has occurred, a statement of a Financial Officer of such Borrower or the Guarantors describing such Termination Event and the action, if any, which such Borrower or the Guarantors or such ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within ten (10) days after receipt thereof by any of the Borrowers or the Guarantors or any of their ERISA Affiliates from the PBGC copies of each notice received by such Borrower or the Guarantors or any such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of such Borrower or the Guarantors or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(j) if requested by the Administrative Agent, promptly and in any event within thirty (30) days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of any of the Borrowers, the Guarantors or any of their ERISA Affiliates;
(k) within ten (10) days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of any of the Borrowers or the Guarantors or any of their ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Financial Officer of such Borrower or the Guarantors setting forth (A) sufficient information necessary to determine the amount of the Lien under Section 302(f)(3), (B) the acquisition reason for the failure to make the required payments and (C) the action, if any, which the Borrowers or the Guarantors or any of their ERISA Affiliates proposed to take with respect thereto;
(l) promptly and in any Relevant Subsidiaryevent within ten (10) days after receipt thereof by any of the Borrowers or the Guarantors or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by such Borrower or the Guarantors or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) any Person becoming the termination of a Relevant Subsidiary Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the contribution to amount of liability incurred, or which may be incurred, by the Borrower of Equity Interests Borrowers or the Guarantors or any ERISA Affiliate in connection with any Person acquired pursuant to a Group Acquisition, event described in each case if the aggregate consideration for such transaction (or, in the case of clause (DA), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(dB) or Section 5.10(e---------- --- (C) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);above; ---
(em) promptly, from time to time, such other information (including, without limitation, projections or information regarding insurance coverage) regarding the operations, business affairs and financial condition of the any Borrower or any of its Relevant Subsidiariesthe Guarantors, or compliance with the terms of any Loan Document, material loan or such consolidating financial statements, financing agreements as in each case the Administrative Agent Agent, at the request of any Lender, may reasonably request request;
(for itself n) promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of any Lender)of the Borrowers with the Bankruptcy Court in the Cases, or distributed by or on behalf of any of the Borrowers to any official committee appointed in any of the Cases, providing copies of same to counsel for the Administrative Agent; and
(fo) no later than one hundred and twenty (120) days following as soon as possible after the first day end of each fiscal year of the BorrowerParent but not later than concurrently with each delivery of financial statements under paragraph (a) above, the Parent shall deliver to the ------------- Administrative Agent (i) a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied schedule setting forth as of the date of the relevant financial statements (or delivery thereof all insurance policies and programs in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied effect with respect to financial information the respective properties and assets and businesses of the Borrower Parent and its Subsidiaries, specifying, for each such policy and program, (A) the Restricted Subsidiaries by furnishing amount thereof, (B) the applicable financial statements risks insured against thereby, (C) the name of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partnersinsurer and each insured party thereunder, (D) the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating policy or other information that explains in reasonable detail identification number thereof, (E) the differences between expiration date thereof, (F) the information annual premium with respect thereto, and (G) any reserves relating to Crestwood Equity Partnersany self-insurance program that is in effect, and (ii) a certificate of insurance showing that all such insurance policies are in full force and effect; and
(p) as soon as possible and in no event later than January 31 of each year during the term of this Agreement, an updated forecast of the Borrowers' cash flows for the period from January 1 of such year through December 31 of such year, on a monthly basis and setting forth the one hand, anticipated uses of the Commitment and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents forecast shall be deemed satisfactory in form and substance to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECand Lenders.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Bethlehem Steel Corp /De/)
Financial Statements, Reports, etc. Furnish In the case of the Borrower and the Guarantors, (i) deliver to the Administrative Agent, the Managing Agent, the Issuing Bank, the Collateral Agent (which will promptly furnish such information to and each of the Lenders)::
(a) within 120 Within 90 days after the end of each fiscal yearyear of the Borrower, a the Borrower's consolidated balance sheet and related statements statement of operationsincome and cash flows, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case Guarantors on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) be audited by Deloitte & Touche, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (qualified in any material respect other than an exception or explanatory paragraph with respect to the maturity Cases) and to be certified by a Financial Officer of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) Borrower to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries the Guarantors on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 Within 45 days after the end of each of the first three fiscal quarters of each the Borrower (commencing with the fiscal yearquarter ending on or about April 30, a 1998), the Borrower's consolidated balance sheet sheets and related statements of operations income and cash flows flows, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case Guarantors on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their respective operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all each certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries the Guarantors on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently Concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying stating that no Default or Event of Default or Default has occurred occurred, or, if such an a Default or 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the provisions of Sections 6.04, 6.05 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.06 hereof;
(d) (i) upon Commencing with the consummation of (A) any Permitted Business Acquisitionfiscal month ending on or about May 31, (B) the acquisition of any Relevant Subsidiary1998, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request within 30 days of the Administrative Agent (but not, in the case end of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer each fiscal month of the Borrower certifying compliance with Section 5.02(c) and providing evidence of (or 45 days if such compliance, including without limitation copies fiscal month end is also the end of any flood hazard determination forms required to be delivered pursuant to Section 5.02(cof the first three fiscal quarters, or 60 days if such fiscal month end is also the end of the fiscal year);
(e) promptly, from time to timethe unaudited monthly income statement, such other information regarding the operations, business affairs balance sheet and financial condition cash flow report of the Borrower or any and the Guarantors on a consolidated basis as of its Relevant Subsidiaries, or compliance with the terms close of any Loan Document, or such consolidating financial statements, fiscal month and the results of their respective operations during such fiscal period and the then elapsed portion of the fiscal year (and such other cash flow reports and operating statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal yearrequest), all certified by a Financial Officer as fairly presenting the obligations in clauses (a), (b) and (f) results of this Section 5.04 may be satisfied with respect to financial information operations of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries Guarantors on a standalone basis, on the other hand; provided further that consolidated basis subject to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.normal year-end audit adjustments;
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Caldor Corp)
Financial Statements, Reports, etc. Furnish The Borrower shall ----------------------------------- furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet sheets (together with an unaudited description of consolidating entries) and related statements of operationsincome and changes in financial position, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by reputable independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Lender and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet sheets (together with an unaudited description of consolidating entries) and related statements of operations income and cash flows changes in financial position, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)notes;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent and (iii) certifying that Lender demonstrating compliance with the Mortgage Requirement is satisfied at the end of the applicable fiscal periodcovenants contained in Sections 6.9 through 6.12, inclusive;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Permitted Business Acquisitiongovernmental authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) promptly upon receipt thereof, copies of any reports submitted to the Borrower by independent certified public accountants in connection with examination of the financial statements of the Borrower made by such accountants;
(f) as soon as possible and in any event within ten (10) days after the occurrence of each Default or Event of Default, a written notice setting forth the details of such Default or Event of Default and the action which is proposed to be taken by the Borrower with respect thereto;
(g) promptly after the furnishing thereof, copies of any statement, report, document, notice, certificate, and correspondence furnished to any other party pursuant to the terms of any indenture, loan, credit, or similar agreement relating to Indebtedness in excess of $500,000 and not otherwise required to be furnished to the Lender pursuant to any other clause of this Section 5.4; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiariessubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ stockholders' equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower CommNet and the Restricted Subsidiaries, in each case Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of CommNet and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, together with a written discussion by management of annual results compared to prior year results;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and operations, cash flows and stockholders' equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower CommNet and the Restricted Subsidiaries, in each case Subsidiaries 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the BorrowerCommNet, on behalf of the Borrower, or the Borrower as fairly presenting, in all material respects, presenting the financial position condition and results of operations of CommNet and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments adjustments, together with a written discussion by management of quarterly results and the absence of footnotes)year-to-date results compared to prior year results;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of CommNet, on behalf of the Borrower, or the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11, 6.12 and 6.13 (iii) certifying it being understood that the Mortgage Requirement is satisfied at the end information required by this clause (ii) may be provided in a certificate of a Financial Officer on behalf of the applicable fiscal periodBorrower instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by CommNet or any Subsidiary 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, or distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the date of this Agreement, the consolidated financial statements of CommNet and the Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a) and (b) above following such change, a schedule prepared by a Financial Officer of CommNet, on behalf of the Borrower, or the Borrower reconciling such changes to what the financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, a copy of an operating and capital expenditure budget for such fiscal year;
(g) promptly following the creation of or acquisition of Capital Stock in any Downstream Affiliate, a certificate from a Responsible Officer identifying such new Downstream Affiliate and the ownership interest (direct or indirect) of CommNet therein;
(h) promptly, a copy of all reports submitted in connection with any material interim or special audit made by independent accountants of the books of CommNet or any Subsidiary;
(i) upon simultaneously with the consummation date of (A) any Permitted Business Acquisition, (B) the acquisition delivery of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired financial statements pursuant to paragraph (a) above (or by such other date as the Administrative Agent shall reasonably request), a Group Acquisitionschedule substantially in the form of Schedule 3.08 containing such information as shall be necessary to update such Schedule 3.08 such that Section 3.08, by reference to such updated schedule so furnished, will be true in each case if all material respects as of the aggregate consideration for last day of the fiscal year to which such transaction financial statements relate (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent Agent, as of the day 60 days (but not, 100 days in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant disclosed by Section 3.08(d)) prior to Section 5.02(cthe date such updated schedule is so furnished);; and
(ej) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of CommNet, the Borrower or any of its Relevant Subsidiariesother Non-Controlled Downstream Affiliate (if the Borrower possesses or has the ability to obtain such information), or Controlled Downstream Affiliate, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to acting through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECmay reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish Borrower shall furnish to Lender the Administrative Agent (which will promptly furnish following, each in such information to the Lenders):form and such detail as Lender shall reasonably request:
(ai) within 120 Within thirty (30) days after the end of each fiscal yearmonth of Borrower, a consolidated balance sheet and related statements Financial Statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close last day of such fiscal year and month, certified on behalf of Borrower by the consolidated results chief financial officer of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position and condition, results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet other information presented therein and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (consistently applied, subject to normal year end adjustments and except that no footnotes need be included with such Financial Statements;
(ii) Within forty-five (45) days after the last day of each fiscal quarter of Borrower, a copy of the Financial Statements of Borrower for such quarter and for the fiscal year to date, certified on behalf of Borrower by the chief financial officer or controller of Borrower to present fairly in all material respects the financial condition, results of operations and other information presented therein and to have been prepared in accordance with GAAP consistently applied, subject to normal year end adjustments and except that no footnotes need be included with such Financial Statements;
(iii) Within ninety (90) days after the close of each fiscal year of Borrower, (A) copies of the audited Financial Statements of Borrower (including, without limitation, consolidated and consolidating Financial Statements for Borrower and its Subsidiaries) for such year, audited by Borrower's current independent certified public accountants or another nationally recognized firm of public accountants that is reasonably acceptable to Lender, and (B) copies of the unqualified opinions and management letters delivered by such accountants in connection with such Financial Statements;
(iv) Contemporaneously with the quarterly and year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under required by the foregoing clauses (aii) or and (b) aboveiii), a certificate of Crestwood GP the president or a Financial Officer chief financial officer of the Borrower (i) certifying stating that no Event of Default or and no Default has occurred occurred, or, if any such an Event of Default or Default has occurred, specifying a statement as to the nature and extent thereof and any corrective what action taken or proposed Borrower proposes to be taken take with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(dv) (i) upon Promptly after Borrower has Knowledge of the consummation of occurrence or existence of: (A) any Permitted Business Acquisition, Reportable Event under any Employee Benefit Plan or Multiemployer Plan that reasonably could be expected to have a Material Adverse Effect; (B) any actual or threatened litigation, suits, claims or disputes against Borrower or its Subsidiaries involving potential monetary damages payable by Borrower or its Subsidiaries of One Hundred Thousand Dollars ($100,000) or more (alone or in the acquisition of any Relevant Subsidiary, aggregate); (C) any Person becoming other event or condition which could reasonably be expected to have a Relevant Subsidiary Material Adverse Effect; or (D) any Event of Default or Default; Borrower will furnish to Lender the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request statement of the Administrative Agent (but not, in the case president or chief financial officer of Borrower setting forth details of such requestevent, more often than annually)condition, an updated Perfection Certificate (or, Event of Default or Default and the action which Borrower proposes to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently take with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)respect thereto;
(evi) promptlySuch other instruments, from time agreements, certificates, statements, documents and information relating to time, such other information regarding the operations, business affairs and operations or condition (financial condition or otherwise) of the Borrower or any of its Relevant Subsidiaries, or and compliance by Borrower with the terms of any this Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower Agreement and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that other Loan Documents as Lender may from time to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECtime reasonably request.
Appears in 1 contract
Sources: Loan Agreement (Handspring Inc)
Financial Statements, Reports, etc. Furnish In the case of Holdings and the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 95 days after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of operations, operations and consolidated statements of shareholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower Holdings and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth year, all audited (in comparative form the corresponding figures for the prior fiscal year (or in lieu case of such audited financial statements of the Borrower consolidated and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the consolidating statements) by any "Big 6" accounting firm or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders, and accompanied by an opinion of such accountants (which opinion shall be without a “not contain any "going concern” " or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterially adverse qualification) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries Holdings on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of operations and consolidated statements of shareholders' equity and cash flows showing the financial position condition of the Borrower Holdings and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries Holdings on a consolidated basis in accordance with GAAP (consistently applied, subject to the absence of footnotes and normal year-end reserves, accruals and audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.08, 6.12, 6.13 and 6.14, (iii) certifying that setting forth each Designated Payment made during the Mortgage Requirement is satisfied at most recent fiscal quarter and calculations of the Designated Payment Amount as of the beginning and end of such quarter and (iv) setting forth notice, if applicable, of any change in the applicable fiscal periodApplicable Percentage based upon the Applicable Fixed Charge Coverage Ratio;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)paragraph (a) above, a certificate executed by a Responsible Officer of the Borrower accounting firm opining on such statements (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying compliance (i) whether in connection with Section 5.02(cits audit examination any Default or Event of Default has come to its attention and, if such event has come to its attention, the nature and extent thereof and (ii) that based on its audit examination and providing evidence its review of such compliancethe computations referred to in clause (ii) of paragraph (c) above, including without limitation copies of any flood hazard determination forms required nothing has come to be its attention that leads it to believe that the information contained in the certificate delivered therewith pursuant to Section 5.02(c)paragraph (c) above is not correct; provided that the requirements of this clause (d) shall be subject to any limitations and qualifications adopted after the date hereof by any professional association or organization or any Governmental Authority, in each case that affects the content of, or ability of accounting firms to deliver, certificates of the type contemplated by this paragraph;
(e) promptly after the same become publicly available or are filed or distributed, as applicable, copies of all periodic and other reports, proxy statements and other materials filed by Holdings or the Borrower or any Subsidiary 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, or distributed to the holders of the Senior Notes or any other Indebtedness with a then outstanding principal amount of $15,000,000 or more (or any trustee, agent or representative for any such holders) or to Holdings' shareholders, as the case may be;
(f) within one Business Day after receipt of notice or knowledge thereof, any change (or prospective change) in the rating of the Obligations or the Senior Notes by ▇▇▇▇▇'▇ or S&P;
(g) no later than 60 days after the first day of each fiscal year of Holdings, a budget in the form approved by the Board of Directors of Holdings for such fiscal year, and which will be generally in the format of the budget delivered to the Administrative Agent prior to the Closing Date; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings and the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operations, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Coopers & Lybr▇▇▇ ▇▇ other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operations operations, stockholders' equity and cash flows showing the financial position condition of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11, 6.12 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period6.13;
(d) (i) upon the consummation on or prior to each date of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request delivery of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received Borrower's year-end financial statements pursuant to Section 4.02(e5.03(a), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such complianceshall provide to each Lender a business plan for the following five years, including without limitation copies of any flood hazard determination forms required in a form satisfactory to be delivered pursuant to Section 5.02(c)the Administrative Agent;
(e) within 10 days after the end of each calendar month a certificate in the form of Exhibit I (a "Borrowing Base Certificate") showing the Borrowing Base as of the close of business on the last day of such calendar month, each such Certificate to be certified as complete and correct on behalf of the Borrower by a Financial Officer of the Borrower;
(f) 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 of the Subsidiaries with the Securities and Exchange Commission, or any Govern- 61 56 mental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish Deliver or cause to be delivered to the Administrative Agent Purchaser and the Trustee:
(which will promptly furnish i) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Originator, a balance sheet of the Originator as of the end of such information year and statements of income and retained earnings and of source and application of funds of the Originator for the period commencing at the end of the previous Fiscal Year and ending with the end of such year, in each case setting forth comparative figures for the previous Fiscal Year, certified without material qualification in a manner satisfactory to the Lenders):Purchaser and the Trustee by Ernst & Young or other nationally recognized, independent public accountants acceptable to the Notice Persons, together with a certificate of such accounting firm stating that in the course of the regular audit of the business of the Originator, which audit was conducted in accordance with generally accepted auditing standards in the United States, such accounting firm has obtained no knowledge that a Purchase Termination Event or Incipient Purchase Termination Event has occurred and is continuing, or if, in the opinion of such accounting firm, such a Purchase Termination Event or Incipient Purchase Termination Event has occurred and is continuing, a statement as to the nature thereof;
(aii) as soon as available and in any event within 120 45 days after the end of each fiscal yearquarter, a consolidated quarterly balance sheet sheets and related quarterly statements of operationssource and application of funds and quarterly statements of income and retained earnings of the Originator, cash flows certified by the chief financial or executive officer of the Originator (or of its general partner, if applicable) (which certification shall state that such balance sheets and owners’ equity showing statements fairly present the financial position condition and results of the Borrower operations for such fiscal quarter, subject to year-end audit adjustments), delivery of which balance sheets and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close statements shall be accompanied by a certificate of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (chief financial or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) executive officer to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (no Purchase Termination Event or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Incipient Purchase Termination 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender)continuing; and
(fiii) no later than one hundred as soon as possible and twenty (120) in any event within three days following the first day of each fiscal year after any officer of the BorrowerOriginator becomes aware of the occurrence of a Servicer Event of Default, a budget for such fiscal year in form customarily prepared by Purchase Termination Event or Incipient Purchase Termination Event or an event of default under the Borrower; provided Retailer Credit Agreement or an event that, if with the Holding Company Condition is satisfied as giving of notice or time elapse, or both, would constitute a Servicer Event of Default, an officer's certificate of the date Originator setting forth details of such event and the relevant financial statements (action that the Servicer or in the Originator, as the case of a budget on the first day of the applicable fiscal year)may be, the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied proposes to take with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECthereto.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP and will furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the close of each of its fiscal years, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants of nationally recognized standing, prepared in accordance with GAAP on a consolidated basis for itself and the Consolidated Subsidiaries, including balance sheets as of the end of each fiscal year, a consolidated balance sheet such period and related statements of operations, cash flows income and ownerschanges in stockholders’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPcash flows;
(b) within 60 45 days after the end close of each of the first three fiscal quarters quarterly periods of each of its fiscal yearyears, a for itself and the Consolidated Subsidiaries, unaudited consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case sheets as of at the close of each such period, and unaudited consolidated statements of income and an unaudited consolidated statement of cash flows for the period from the beginning of such fiscal quarter and year to the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu end of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)quarter, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the its chief financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes)officer;
(c) concurrently together with any delivery of the financial statements under (a) or (b) aboverequired hereunder, a compliance certificate in substantially the form of Crestwood GP or a Financial Officer of Exhibit D signed by the Borrower (i) certifying Borrower’s chief financial officer showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Event of Default exists, or if any Default has occurred or, if such an or Event of Default or Default has occurredexists, specifying stating the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal periodstatus thereof;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests as soon as possible and in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a event within 10 days after any Responsible Officer of the Borrower certifying compliance knows that (i) any Reportable Event has occurred with Section 5.02(crespect to any Plan, (ii) any Withdrawal Liability has been incurred with respect to any Multiemployer Plan or (iii) the Borrower or any member of the Controlled Group has received any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA, a statement, signed by the chief financial officer of the Borrower, describing such Reportable Event, Withdrawal Liability or notice and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required the action which the Borrower proposes to be delivered pursuant to Section 5.02(c)take with respect thereto;
(e) promptlypromptly upon the furnishing thereof to the shareholders of the Borrower, from time to timecopies of all financial statements, such reports and proxy statements so furnished;
(f) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other information regarding the operations, business affairs and financial condition of regular reports which the Borrower or any of its Relevant Subsidiaries, or compliance Consolidated Subsidiary files with the terms Securities and Exchange Commission or financial reports material to the interests of any the Lenders or to the ability of the Borrower to perform its obligations under the Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender)Documents; and
(fg) no later than one hundred such other information (including financial information and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared any information required by the Borrower; provided that, if Patriot Act or any other “know your customer” or similar laws or regulations) as the Holding Company Condition is satisfied as of the date of the relevant Agent or any Lender may from time to time reasonably request. The financial statements (or in required to be delivered by the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), Borrower pursuant to Section 5.04(a) and (b) and the reports and statements required to be delivered by the Borrower pursuant to Section 5.04(e) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered (i) when reports containing such financial statements or other materials are posted on the Borrower’s website on the internet at ▇▇▇▇://▇▇.▇▇▇▇▇.▇▇▇ (or any successor page identified in a notice given to the Administrative Agent under this Agreement and the Lenders) or on the date SEC’s website on the internet at ▇▇▇.▇▇▇.▇▇▇ and the Borrower has notified the Agent (who in turn shall notify the Lenders) that such documents reports have been so posted or (ii) when such financial statements, reports or statements are made publicly available by the SECdelivered in accordance with Section 9.17(a).
Appears in 1 contract
Sources: Five Year Competitive Advance and Revolving Credit Facility Agreement (Janus Capital Group Inc)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to Agent, with copies for each of the Lenders)::
(a) within 120 90 days after the end of each fiscal yearFiscal Year, (i) a consolidated Consolidated and consolidating balance sheet and related statements of operations, cash flows and owners’ equity income statement showing the financial position condition of the Borrower Parent and its it Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year Fiscal Year and the consolidated results of their operations during such year year, and setting forth in comparative form (ii) a Consolidated and consolidating statement of shareholders' equity and a Consolidated and consolidating statement of cash flow, as of the corresponding figures for the prior fiscal year (or in lieu close of such audited Fiscal Year, all of the foregoing Consolidated (but not consolidating) financial statements of to be audited by independent public accountants acceptable to the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries Agent (if any) from such consolidated financial statements), all (which report shall not contain any qualification except with respect to such reconciliationnew accounting principles mandated by the Financial Accounting Standards Board) audited by independent accountants of recognized national standing reasonably and to be in form and substance acceptable to the Administrative Agent (the foregoing consolidating financial statements to be prepared and accompanied certified by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity Financial Officer of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception Parent as to the scope of such audit) to the effect that such consolidated financial statements presenting fairly present, in all material respects, the financial position condition and results of operations of the Borrower Parent and its Subsidiaries on a consolidated basis and as having been prepared in accordance with GAAP);
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, a consolidated (i) an unaudited Consolidated and consolidating balance sheet and related statements of operations and cash flows income statement showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position condition and results of operations of the Borrower Parent and its Subsidiaries on as of the end of each such quarter and (ii) a consolidated basis Consolidated statement of cash flow, in each case for the fiscal quarter just ended and for the period commencing at the end of the immediately proceeding Fiscal Year and ending with the last day of such fiscal quarter and prepared and certified by the Financial Officer of the Parent as presenting fairly the financial condition and results of operations of the Parent and its Subsidiaries and as having been prepared in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by the Parent or any Subsidiaries with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934;
(i) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP the firm or a Financial Officer of person referred to therein (which certificate furnished by the Borrower independent public accountants referred to in paragraph (ia) above may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that to the best of his or her knowledge no Default or Event of Default or Default has occurred or(including calculations demonstrating compliance, as of the dates of the financial statements being furnished, with the covenants set forth in Sections 7.07, 7.10, 7.11, and 7.12) and, if such an a Default or 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; provided, however, that any certificate delivered concurrently with (iia) setting forth a computation and (b) above shall be signed by the Financial Officer of the Parent;
(e) concurrently with any delivery under (a) above, if prepared, a management letter by the independent public accountants who reported on the financial statements delivered under (a) above, with respect to the internal audit and financial controls of the Parent and its Subsidiaries;
(f) within twenty days of the end of each fiscal month, a certificate executed by the Financial Performance Covenants Officers of the Borrowers demonstrating that as at the end of such fiscal month Availability was zero or greater;
(g) at least 30 days prior to the beginning of each Fiscal Year, a summary of business plans and financial operation projections (including, without limitation, with respect to capital expenditures) for the Parent and its Subsidiaries for such Fiscal Year (including monthly balance sheets and statements of income) prepared by management and in form, substance and detail (including, without limitation, principal assumptions) reasonably satisfactory to the Administrative Agent (such projections to be updated by the Borrowers on a quarterly basis thereafter);
(h) as soon as practicable, copies of all reports, forms, filings, loan documents and financial information submitted to governmental agencies (except tax returns) and/or its shareholders;
(i) the following information, documents or instruments no later than the dates indicated without the benefit of any grace period provided for in subparagraph (d) of Article VIII hereof.
(i) Weekly, no later than the second Business Day of each week, an aging schedule of Receivables and a certificate executed by the Financial Officer of the Borrowers calculating the Borrowing Base and demonstrating compliance with the Availability requirement;
(ii) Monthly, no later than the second Business Day of the first full week of each month, an inventory confirmation certificate ("Inventory Confirmation"), which shall be in the form of Exhibit I hereto and which shall be in substance acceptable to the Agent, executed by a Responsible Officer of the Borrowers, detailing the locations of the inventory, the value of such inventory by type at each location and by division and the total value of such inventory;
(iii) certifying that Weekly, no later than the Mortgage Requirement is satisfied at the end second Business Day of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a)week, a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) Borrowers, detailing the total value of the inventory, the value of the inventory designated as "excess inventory" and providing evidence the value of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)the inventory not designated as "excess inventory";
(eiv) promptly, from time In addition to timethe foregoing, such other information (including, without limitation, tax returns) regarding the operations, business affairs and financial condition of the Borrower Parent and its Subsidiaries as the Agent or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Lender may reasonably request (for itself or on behalf of any Lender)request; and
(fv) no later than one hundred Daily, if and twenty (120) days following when the first day Factoring Agreements have been terminated, a written report of each fiscal year all sales made by the Borrowers and a confirmatory assignment to the Agent of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or accounts created thereby in the case of a budget on form provided by Borrowers to CIT under the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECFactoring Agreements.
Appears in 1 contract
Sources: Credit Agreement (Donnkenny Inc)
Financial Statements, Reports, etc. Furnish Borrower shall furnish to Agent for each Lender the Administrative following, each in such form and such detail as Agent shall reasonably request (copies of which will Agent shall promptly furnish such information deliver to the Lenderseach Lender):
(ai) within 120 As soon as available and in no event later than fifty (50) days after the end last day of each fiscal yearquarter of Borrower, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position copy of the Financial Statements of Borrower and its Subsidiaries and, if different, the Borrower (prepared on a consolidated basis) for such quarter and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification to date, certified by the chief executive officer, president, chief financial officer or exception as treasurer of Borrower to the scope of such audit) to the effect that such consolidated financial statements present fairly present, in all material respects, the financial position and condition, results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet other information reflected therein and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotesadjustments);
(cii) concurrently with any delivery As soon as available and in no event later than one hundred (100) days after the close of financial statements under each fiscal year of Borrower, (aA) or (b) above, a certificate of Crestwood GP or a Financial Officer copies of the audited Financial Statements of Borrower and its Subsidiaries (prepared on a consolidated basis) for such year, prepared by independent certified public accountants of recognized national standing acceptable to Agent, and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to Agent) and management letters delivered by such accountants in connection with all such Financial Statements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) certifying and (ii), a compliance certificate (the "Compliance Certificate") of the chief executive officer, president, chief financial officer or treasurer of 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 orand is continuing, if such an Event of Default or Default has occurred, specifying a statement as to the nature and extent thereof and any corrective what action taken or proposed Borrower proposes to be taken take with respect thereto, and (iiB) setting forth a computation sets forth, for the quarter or year covered by such Financial Statements or as of the Financial Performance Covenants in detail reasonably satisfactory to last day of such quarter or year (as the Administrative Agent and (iii) certifying that case may be), the Mortgage Requirement is satisfied at the end calculation of the applicable fiscal periodfinancial ratios and tests provided in Subparagraph 5.02(l) and, if applicable, the calculation of the Applicable Margins, Commitment Fee percentages and LC Usage Fee percentages for such quarter determined in accordance with the Pricing Grid;
(div) As soon as possible and in no event later than ten (i10) upon Business Days after the consummation date of promulgation thereof by S&P and/or Mood▇'▇, ▇▇tice of any change in Borrower's Debt Rating;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of Borrower knows of the occurrence or existence of (A) any Permitted Business Acquisition, Reportable Event under any Employee Benefit Plan or Multiemployer Plan; (B) the acquisition any actual litigation or threatened litigation which has a reasonable likelihood of any Relevant Subsidiaryleading to actual litigation, (C) any Person becoming a Relevant Subsidiary suits, claims or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the disputes against Borrower or any of its Relevant Subsidiaries involving potential monetary damages payable by Borrower or its Subsidiaries of $10,000,000 or more alone and/or $20,000,000 or more in the aggregate; (C) any other event or condition which is reasonably likely to have a Material Adverse Effect; or (D) any Default or Event of Default; the statement of the president or chief financial officer of Borrower setting forth details of such event, condition, Default or Event of Default and the action which Borrower proposes to take with respect thereto;
(vi) 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 Borrower or any of its Subsidiaries with any securities exchange or the Securities and Exchange Commission (including, without limitation, all 10-Q, 10-K and 8-K reports); (B) all reports, proxy statements and financial statements sent or made available by Borrower or any of its Subsidiaries to its security holders; and (C) all press releases and other similar public statements concerning any material developments in the business of Borrower or any of its Subsidiaries made available by Borrower or any of its Subsidiaries to the public generally;
(vii) Contemporaneously with any Investment by Borrower consisting of any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person or any capital contribution to or any other investment in any other Person having a value in excess of $60,000,000, a pro forma Compliance Certificate certified by the chief executive officer, president, chief financial officer or treasurer of Borrower which sets forth the calculation of the financial ratios and tests provided in Subparagraph 5.02(l) after giving effect to any such Investment; and
(viii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or its Subsidiaries, or and compliance by Borrower with the terms of any Loan Document, or such consolidating financial statements, this Agreement and the other Credit Documents as in each case the Administrative Agent may from time to time reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Agreement (Lam Research Corp)
Financial Statements, Reports, etc. Furnish In the case of Parent, ----------------------------------- furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operations, stockholders' equity and cash flows and owners’ equity showing the financial position condition of the Borrower Parent and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by KPMG Peat Marwick LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operations operations, stockholders' equity and cash flows showing the financial position condition of the Borrower Parent and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under sub- paragraph (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower opining on or certifying such statements (iwhich certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) 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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) as soon as available and in any event within 90 days after the end of each fiscal year, (i) upon the consummation Statement of Actuarial Opinion of each Insurance Subsidiary for such fiscal year as filed with the Applicable Insurance Regulatory Authority and (A) any Permitted Business Acquisition, (Bii) the acquisition Annual Statement of any Relevant Subsidiary, (C) any Person becoming a Relevant each Insurance Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (orfiscal year as filed with the Applicable Insurance Regulatory Authority, together with, in the case of the statements delivered pursuant to clause (D)ii) above, (x) a certificate of a Responsible Officer of such Group Acquisition) exceeds $25.0 millionInsurance Subsidiary or a Responsible Officer of Parent, or upon the reasonable request of the Administrative Agent (but not, in as the case of such request, more often than annually), an updated Perfection Certificate (ormay be, to the extent effect that such request relates statements present fairly the statutory assets, liabilities, capital and surplus, results of operations and cash flows of such Insurance Subsidiary in accordance with SAP and (y) management discussions and analysis prepared by such Insurance Subsidiary with respect to specified information contained such Annual Statement;
(e) as soon as available and in any event within 45 days after the Perfection Certificate, such information) reflecting all changes since the date end of each of the information most recently received pursuant to Section 4.02(e)first three fiscal quarters of each fiscal year, this Section 5.04(d) or Section 5.10(e) and (ii) concurrently the Quarterly Statement of each Insurance Subsidiary for such fiscal quarter as filed with the delivery of financial statements under Section 5.04(a)Applicable Insurance Regulatory Authority, a certificate executed certified by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) as fairly presenting the statutory assets, liabilities, capital and providing evidence surplus, results of operations and cash flows of such complianceInsurance Subsidiary.
(f) promptly after delivery to an Insurance Subsidiary, including without limitation final copies of any flood hazard determination forms required all regular and periodic reports of reviews or examinations of such Insurance Subsidiary delivered to be delivered pursuant to Section 5.02(c)such Insurance Subsidiary by the Applicable Insurance Regulatory Authority;
(eg) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Parent, the Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent, the Borrower Company or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 120 days after the end of each fiscal year, starting with the fiscal year ending January 31, 2014, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, starting with the fiscal quarter ending April 30, 2014, a consolidated balance sheet and related statements of operations and cash flows showing the consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iiiy) certifying that concurrently with any delivery of financial statements under (a) above, a certificate of its independent accounting firm stating whether they obtained knowledge during the Mortgage Requirement is satisfied at the end course of the applicable fiscal periodtheir examination of such statements of any Default or Event of Default under Section 6.10, 6.11 or 6.13 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of its Relevant Subsidiaries with the SEC, or distributed to its stockholders generally, if and as applicable;
(i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) Subsidiary or any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group AcquisitionSubsidiary, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds U.S. $25.0 million5,000,000, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e4.02(d), this Section 5.04(dparagraph (e) or Section 5.10(e5.10(c) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(ef) promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of the Borrower or any of its Relevant Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of the Borrower or any of its Relevant Subsidiaries;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service 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 a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;
(i) concurrently with any delivery of financial statements under (a) or (b) above, a management discussion and analysis of the Borrower’s financial condition, results of operations, liquidity and capital resources for the period covered by such financial statements, in form reasonably acceptable to the Administrative Agent; and
(fj) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any material change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) [reserved];
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of 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. Documents required to be delivered pursuant to this Section 6.04 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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); and
provided, that: (fi) no later than one hundred the Borrower shall deliver paper copies of such documents required to be delivered pursuant to Section 6.04(a) and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) 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 (fii) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to notify the Administrative Agent, upon request from Agent (by telecopier or electronic mail) of the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent posting of any such documents required to be delivered pursuant to Section 5.04 6.04(a) and (b). 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of 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 upon the written request of the Administrative Agent (w) all Borrower Materials that are included in materials filed with to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the SEC, such documents word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered authorized the Administrative Agent, the Joint Lead 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 (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (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 under this Agreement and the Joint Lead 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 date such documents are made publicly available by the SECPlatform not designated “Public Side Information.”
Appears in 1 contract
Sources: Term Loan Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) as soon as available and in any event within 120 one hundred and twenty (120) days after the end of each the fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position year of the Borrower Company, copies of (i) consolidated and consolidating balance sheets of the Company and its Subsidiaries andas at the end of such year and (ii) consolidated and consolidating statements of earnings, if differentshareholders' equity and cash flows of the Company and its Subsidiaries for such year, the Borrower and the Restricted Subsidiaries, setting forth in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior previous fiscal year (or year, all in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesreasonable detail, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one handprepared in accordance with Generally Accepted Accounting Principles consistently applied, and the Borrower and the Subsidiaries, on the accompanied by an opinion thereon of BDO Seidman LLP or other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants Lender (the "Auditor"), which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect state that such consolidated financial statements fairly presentpresent fairly, in all material respects, the financial position of the Company and its Subsidiaries and their results of operations and cash flows and have been prepared in conformity with Generally Accepted Accounting Principles, and that the examination of the Borrower and its Subsidiaries on a consolidated basis Auditor in connection with such financial statements has been made in accordance with GAAP;generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances; provided that such opinion shall not include a "going concern" or like qualification or exception or qualification or exception as to the scope of the audit.
(b) as soon as available and in any event within 60 sixty (60) days after the end of each of the first three first, second and third fiscal quarters of each fiscal yearthe Company, a copies of (i) consolidated and consolidating balance sheet and related statements of operations and cash flows showing the financial position sheets of the Borrower Company and its Subsidiaries andas at the end of such quarter, if different, and (ii) consolidated and consolidating statements of earnings of the Borrower Company and the Restricted its Subsidiaries, for such quarter and (in each the case as of the close of such fiscal quarter second and third quarters) for the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ending with such quarter, and a statement of cash flows for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of in the prior previous fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all in reasonable detail, reviewed by the Auditor and prepared and certified by Crestwood GP or a the Chief Financial Officer of the Borrower, on behalf of the Borrower, Company as fairly presenting, in all material respects, the financial position of the Company and its Subsidiaries and their results of operations of the Borrower and its Subsidiaries on a consolidated basis cash flows in accordance with GAAP (Generally Accepted Accounting Principles consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently a certificate prepared and signed by the Chief Financial Officer with any each delivery of financial statements under (a) or required by clause (b) above), stating whether the Chief Financial Officer shall have obtained knowledge of any Default or Event of Default hereunder, together with a certificate of Crestwood GP or a the Chief Financial Officer of the Borrower (i) certifying Company demonstrating 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) setting forth a computation as of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end last day of the applicable relevant fiscal periodyear or quarter, as applicable, the Company, was in compliance with the financial condition covenants set forth in Section 7.13 hereof;
(d) as soon as available and in any event within 120 days after the end of each fiscal year of the Company, an annual financial statement of all corporate (ior other entity) upon the consummation of Guarantors (A) any Permitted Business Acquisitionif any), (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming in a Relevant Subsidiary or (D) the contribution form reasonably satisfactory to the Borrower of Equity Interests Lender, prepared and certified by an Auditor as true and correct in any Person acquired pursuant to a Group Acquisition, in each case if all material respects for the aggregate consideration for such transaction then immediately preceding calendar year (or, in unless the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request results of the Administrative Agent (but not, in the case operations of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently Guarantor are consolidated with the delivery of financial statements furnished to Lender under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c(a) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(cabove);
(e) on or before the 15th day of each calendar month, an anticipated business analysis of/for the Borrowers, in the form attached to the Credit Agreement as Exhibit K, setting forth the information and results which are the subject of such form (both on a prospective basis as well as reconciled as to actual results); and
(f) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial condition or otherwise) of the Borrower Company or any Subsidiary of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, Company as in each case the Administrative Agent Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Lender:
(a) within 120 100 days after the end of each fiscal year, a its audited consolidated balance sheet sheets and related statements of operationsincome and cash flow, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Arth▇▇ ▇▇▇e▇▇▇▇ & ▇o. or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Lender and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its unaudited consolidated balance sheet sheets and related statements of operations income and cash flows flow, showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf Financial Officers of the Borrower, Borrowers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of Crestwood GP the accounting firm or a Financial Officer of the Borrower 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, thereto and (ii) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent Lender demonstrating compliance with the covenants contained in Sections 5.06, 5.13, 5.14 and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period5.15;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or 18 18 any Permitted Business AcquisitionGovernmental Authority succeeding to any of or all the functions of said Commission, (B) the acquisition of or with any Relevant Subsidiarynational securities exchange, (C) any Person becoming a Relevant Subsidiary or (D) the contribution distributed to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisitionits shareholders, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of Holdings, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 90 days after the end of each fiscal year, a the consolidated and consolidating balance sheet and related statements of operations, income and cash flows and owners’ equity showing the financial position of the Borrower Holdings and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by KPMG Peat Marwick LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of the Borrower Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, a the consolidated balance sheet and related statements of operations income and cash flows showing the financial position of the Borrower Holdings and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of the Borrower Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(ci) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying such statements 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) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a certificate of a Financial Officer certifying such statements setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.08, 6.09 and 6.10, and (iii) in the case of paragraph (a) above, a computation report of the Financial Performance Covenants accounting firm opining on such financial statements stating that in detail the course of its regular audit of the financial statements of Holdings and its Subsidiaries, which audit was conducted in accordance with GAAP, such accounting firm obtained no knowledge that any Event of Default or Default has occurred or, if in the opinion of such accounting firm such an Event of Default or Default has occurred, specifying the nature and extent thereof;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to holders of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any trustee, agent or other representative therefor), as the case may be;
(e) promptly after the receipt thereof by Holdings, the Borrower or any of their respective Subsidiaries, a copy of any "management letter" received by any such person from its certified public accountants and the management's responses thereto;
(f) no later than 30 days following the first day of each fiscal year of Holdings, a budget in form reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end including budgeted statements of income by each of the applicable fiscal period;
(dBorrower's business units and sources and uses of cash and balance sheets) prepared by Holdings for (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case four quarters of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained fiscal year prepared in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) detail and (ii) concurrently with each of the delivery five years immediately following such fiscal year prepared in summary form, in each case, of financial statements under Section 5.04(a)Holdings and its Subsidiaries, accompanied by the statement of a certificate executed by a Responsible Financial Officer of Holdings to the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);effect that the budget is a reasonable estimate for the period covered thereby; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Sources: Credit Agreement (Fairchild Semiconductor International Inc)
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly The Borrowers shall furnish such information to the Lenders):
(a) within 120 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of each Lender the following, each in such accountants (which opinion form and such detail as the Administrative Agent or the Required Lenders shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;reasonably request:
(bi) within 60 As soon as available and in no event later than forty-five (45) days after the end last day of each of the first three fiscal quarters of each fiscal year, year of the Borrowers (i) a copy of the Financial Statements of the Borrowers and all Subsidiaries of the Borrowers (prepared on a consolidated balance sheet and related statements consolidating basis) for such quarter (beginning with the quarter ending December 31, 2003 and thereafter) and for the fiscal year to date, certified by a Responsible Officer of each Borrower to present fairly in all material respects the financial condition, results of operations and cash flows showing the financial position of the Borrower other information reflected therein and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer narrative from management of the Borrower certifying compliance with Section 5.02(c) Borrowers which discusses results and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)prospects;
(eii) promptly, from time to time, such other information regarding the operations, business affairs As soon as available and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no event later than one hundred and twenty five (120105) days following after the first day close of each fiscal year of the BorrowerBorrowers, (A) copies of the audited consolidated and unaudited consolidating Financial Statements of the Borrowers and all Subsidiaries of the Borrowers (prepared on a consolidated and consolidating basis, as applicable) for such year, audited (as to the consolidated Financial Statements) by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and accompanied by copies of the unqualified opinions delivered by such accountants in connection with all such Financial Statements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), (x) a compliance certificate of a Responsible Officer of the Borrowers in substantially the form of Exhibit L (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 budget statement as to the nature thereof and what action the Borrowers propose 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 possible and in no event later than five (5) Business Days after any Loan Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Loan Party involving potential monetary damages payable by any Loan Party of $250,000 or more (alone or in the aggregate) or in which injunctive relief or similar relief is sought, which if adversely determined (and there exists a reasonable possibility of such an adverse determination), could reasonably be expected to result in a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, including (I) breach or non-performance of, or any default under, a Contractual Obligation of a Borrower or any Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between a Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any material development in, any litigation or proceeding affecting a Borrower or any Guarantor, including pursuant to any applicable Environmental Laws; (D) any Default, or (E) any material change in accounting policies of or financial reporting practices by the applicable Loan Party, the statement of a Responsible Officer of the Borrowers setting forth details of such event, condition or Default and the action which the Borrowers propose to take with respect thereto;
(v) Promptly, 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 the Borrowers 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-K reports); (B) all reports, proxy statements and financial statements sent or made available by such 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 the Borrowers or any of their Subsidiaries made available by the Borrowers or any of their Subsidiaries to the public generally;
(vi) As soon as available and in no event later than five (5) Business Days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(vii) As soon as available, and in any event not later than thirty (30) days prior to the commencement of each fiscal year of the Borrowers, projected financial statements of the Loan Parties for such fiscal year year, including, in form customarily prepared by the Borrower; provided thateach case, if the Holding Company Condition is satisfied as projected balance sheets, statements of income and retained earnings and statements of cash flow of the date Loan Parties, all in reasonable detail.
(viii) As soon as available, and in any event not later than thirty (30) days after the end of each month, monthly Financial Statements of the relevant financial statements Loan Parties for such month (as well as a comparison of the performance of the Borrowers for such month during the prior year), prepared in accordance with GAAP.
(ix) As soon as possible and, to the extent not prohibited by applicable law, not later than five (5) Business Days prior to (or to the extent applicable law prohibits prior disclosure or in the case of casualty events, not later than five (5) Business Days after) the occurrence of any event or circumstance that would require a budget on the first day of the applicable fiscal yearprepayment pursuant to Section 2.07(c), the obligations statement of a Responsible Officer of the Borrowers setting forth the details thereof;
(x) As soon as possible and, to the extent not prohibited by applicable law, not later than five (5) Business Days prior to (or to the extent applicable law prohibits prior disclosure or in clauses the case of casualty events, not later than five (a5) Business Days after) the establishment or acquisition by a Borrower or any Subsidiary of a Borrower of any new Subsidiary or any new Equity Securities of any existing Subsidiary or any liquidation or dissolution of a Subsidiary under Section 5.02(d)(iv);
(xi) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by a Borrower or any Subsidiary of a Borrower, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law, or any notice or assertion of liability of a Borrower or any Subsidiary of a Borrower for Environmental Damages, in each case, which could reasonably be expected to have a Material Adverse Effect;
(bxii) As soon as possible and in no event later than five (f5) Business Days after the receipt thereof by any Borrower or any of this Section 5.04 may be satisfied its Subsidiaries, copies of any and all material notices and other material adverse communications from any Governmental Authority or Gaming Authority with respect to financial information any Loan Party or any Gaming Facility (including copies of the Borrower Nevada “Regulation 6.090 Report” and “6-A Report” and any other written communication to a Loan Party from any Gaming Authority advising it of a violation of or non-compliance with any Gaming Law by a Loan Party) and promptly upon the Restricted Subsidiaries request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by furnishing the applicable financial statements of Crestwood Equity Partners; provided that any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(xiii) As soon as possible and in no event later than ten (10) days prior to the extent such information relates acquisition by any Loan Party of any leasehold or ownership interest in real property, a written supplement to Crestwood Equity PartnersSchedule 4.01(h); and
(xiv) Such other instruments, the Borrower shall promptly provide to the Administrative Agentagreements, upon request from the Administrative Agentcertificates, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partnersopinions, on the one handstatements, documents and the information relating to the Borrower properties, operations or condition (financial or otherwise) of the Loan Parties, and compliance by the Borrowers with the terms of this Agreement and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to Credit Documents as the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECor any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Sands Regent)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (Agent, which will promptly shall furnish such information to the Lenders):each Lender:
(a) within 120 90 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an or exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, present in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a one of its Financial Officer of the Borrower, on behalf of the Borrower, Officers as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of the Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes)adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent and demonstrating compliance with the covenant contained in Section 6.13 and, with respect to any Permitted Acquisition consummated during the preceding quarter for total consideration in excess of $50,000,000, 6.04(h), (iii) certifying that setting forth the Mortgage Requirement identity and value of any Hospital acquired in fee by the Borrower or any Subsidiary during the preceding quarter and not previously identified to the Administrative Agent if the fair market value thereof is satisfied at in excess of $5,000,000 and (iv) setting forth computations in reasonable detail satisfactory to the end Administrative Agent of the applicable fiscal periodSecured Net Leverage Ratio and the Total Leverage Ratio and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow;
(d) within 120 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(f) promptly after the request by any Lender (made through the Administrative Agent), 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;
(g) promptly after the request by the Administrative Agent or any Lender, copies of (i) upon the consummation any documents described in Section 101(k)(1) of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to ERISA that the Borrower or any of Equity Interests in its ERISA Affiliates may request with respect to any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) Multiemployer Plan and (ii) concurrently 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 delivery Borrower or any of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower certifying compliance with Section 5.02(c) or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and providing evidence shall provide copies of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)documents and notices promptly after receipt thereof;
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of itself or any Lender); and
(fi) no later than one hundred and twenty (120) days following the first day of substantially contemporaneously with each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case designation of a budget on the first day Subsidiary as an “Unrestricted Subsidiary” and each redesignation of the applicable fiscal year)an Unrestricted Subsidiary as a “Subsidiary”, the obligations in clauses (a)provide written notice of such designation or redesignation, (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partnersas applicable, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on (who shall promptly notify the date such documents are made publicly available by the SECLenders).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):and each Lender:
(a) within 120 95 days after the end of each fiscal year, a its annual report on Form 10‑K as filed with the SEC, including its consolidated balance sheet and the related statements of operations, cash flows and owners’ equity consolidated earnings statement showing the its consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case condition as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing reasonably acceptable to selected by the Administrative Agent Company and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” qualification or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as with respect to the scope of such auditopinion) to the effect that such consolidated financial statements fairly present, in all material respects, present the Company’s financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its quarterly report on Form 10‑Q as filed with the SEC, including its unaudited consolidated balance sheet and related statements of operations and cash flows consolidated earnings statement, showing the its consolidated financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case condition as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year (and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu each delivery of such unaudited statements shall be deemed a representation that such statements fairly present the Company’s financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (GAAP, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, thereto and (ii) setting forth a computation calculating the Consolidated Leverage Ratio in reasonable detail as of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end last day of the applicable fiscal period and calculating the Consolidated Interest Coverage Ratio in reasonable detail for the period of four fiscal quarters ending on the last day of such fiscal period;; and
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or as any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may Lender shall reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to through the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents . Information required to be delivered pursuant to this Section 5.04 are included in materials filed with the SEC, such documents 5.3 shall be deemed to have been effectively delivered (including for purposes of Section 8.1(b)) on the date on which the Company provides notice to the Administrative Agent under this Agreement (which notice the Administrative Agent shall promptly provide to the Lenders) that such information has been posted on the date SEC website on the Internet at s▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ (or any successor website), on the Company’s IntraLinks site at i▇▇▇▇▇▇▇▇▇.▇▇▇ or at another relevant website identified in such documents are made publicly available notice and accessible by the SECLenders without charge. Any such notice by the Company or the Administrative Agent may be by e-mail to the addresses provided in or pursuant to Sections 8.1(b) and 8.1(c).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the ---------------------------------- Corporation, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Holder:
(ai) as soon as practicable and in any event within 60 days after the end of each fiscal quarter, consolidated balance sheets of the Corporation and its Subsidiaries, as at the end of such period, and the related consolidated statements of income, stockholders' equity and cash flows for such fiscal quarter, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a Financial Officer of the Corporation that they fairly present the financial condition of the Corporation and its Subsidiaries as at the date indicated and the results of their operations and changes in their financial position for the periods indicated, subject to changes resulting from audit and normal year-end adjustment;
(ii) as soon as practicable and in any event within 60 days after the end of each fiscal quarter, balance sheets of the Corporation and the Non-Insurance Subsidiaries and balance sheets of the Insurance Subsidiaries, each as at the end of such period, and the related statements of income, stockholders' equity and cash flows for such fiscal quarter, setting forth in each case in comparative form the figures for the corresponding periods of the previous fiscal year, together with the consolidating intercompany eliminations and adjustments, all in reasonable detail, and certified by a Financial Officer of the Corporation that they fairly present the financial condition of the Corporation and the Non-Insurance Subsidiaries and the Insurance Subsidiaries, respectively, as at the date indicated and the results of their operations and changes in their financial position for the periods indicated, subject to changes resulting from audit and normal year-end adjustment;
(i) as soon as practicable and in any event within 120 days after the end of each fiscal year of the Corporation, consolidated balance sheets of the Corporation and its Subsidiaries, as at the end of such year, a and the related consolidated balance sheet and related statements of operationsincome, stockholders' equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries andfor such fiscal year, if different, the Borrower and the Restricted Subsidiaries, setting forth in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth case, in comparative form the corresponding consolidated figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)previous year, all (except with respect to such reconciliation) audited in reasonable detail and accompanied by a report thereon of Price Waterhouse LLP or other independent certified public accountants of recognized national standing selected by the Corporation and reasonably acceptable satisfactory to the Administrative Agent and accompanied by an opinion of such accountants (Holder, which opinion report shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception unqualified as to the going concern and scope of such audit) to the effect audit and shall state that such consolidated financial statements fairly presentpresent fairly, in all material respects, the financial position of the Corporation and its Subsidiaries; as at the dates indicated, and the results of their operations of and cash flows for the Borrower and its Subsidiaries periods indicated in conformity with GAAP (applied on a basis consistent with prior years unless as otherwise stated therein) and that the examination by such accountants in connection with such consolidated basis financial statements has been made in accordance with GAAPgenerally accepted auditing standards;
(bii) as soon as practicable and in any event within 60 120 days after the end of each fiscal year of the first three fiscal quarters Corporation, balance sheets of the Corporation and the Non- Insurance Subsidiaries and balance sheets of the Insurance Subsidiaries, each as at the end of such year, and the related statements of income, stockholders' equity and cash flows for such fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, setting forth in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods previous year, together with the consolidating intercompany eliminations and adjustments, all in reasonable detail and accompanied by a report thereon of Price Waterhouse LLP or other independent certified public accountants of recognized national standing selected by the Corporation and reasonably satisfactory to the Holder, which report shall state that the balance sheets of the prior fiscal year (or Corporation and the Non-Insurance Subsidiaries and balance sheets of the Insurance Subsidiaries and the related statements of income, stockholders' equity and cash flows, together with consolidating intercompany eliminations and adjustments, were subjected to the auditing procedures applied in lieu the examination of such unaudited the consolidated financial statements of the Borrower referred to in Section 4.4(b)(i) and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as are fairly presenting, stated in all material respects, respects in relation to the consolidated financial position and results of operations of the Borrower and its Subsidiaries on statements taken as a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes)whole;
(c) concurrently together with any each delivery of financial statements under (aof the Corporation and its Subsidiaries pursuant to Sections 4.4(a) or and (b) above, (i) a certificate of Crestwood GP or a Financial Officer stating that the signer thereof has reviewed the terms of this Agreement and the other Transaction Documents and has made, or caused to be made under his supervision, a review in reasonable detail of the Borrower (i) certifying transactions and condition of the Corporation and its Subsidiaries during the accounting period covered by such financial statements and that no such review has not disclosed the existence during or at the end of such accounting period, and that the signer does not have knowledge of the existence as at the date of such certificate, of any condition or event which constitutes an Event of Default or Default has occurred Noncompliance, or, if any such an Event of Default condition or Default has occurredevent existed or exists, specifying the nature and extent period of existence thereof and any corrective what action taken or proposed the Corporation has taken, is taking and proposes to be taken take with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) promptly upon the consummation receipt thereof, copies of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution all reports submitted to the Borrower of Equity Interests Corporation by independent public accountants in any Person acquired pursuant to a Group Acquisitionconnection with each annual, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, interim or upon the reasonable request special audit of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date financial statements of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed Corporation made by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such complianceaccountants, including without limitation copies of any flood hazard determination forms required comment letter submitted by such accountants to be delivered pursuant to Section 5.02(c)management in connection with their annual audit;
(e) promptlypromptly upon their becoming available, from time copies of all (i) financial statements, reports, notices and proxy statements sent or made available generally by the Corporation to timeits security holders or by any of its Subsidiaries to its security holders other than the Corporation or another of its Subsidiaries, and (ii) regular and periodic reports and all registration statements and prospectuses, if any, filed by the Corporation or any of its Subsidiaries with any securities exchange or with the Commission or any Governmental Authority succeeding to any of its functions;
(f) promptly upon any officer of the Corporation obtaining knowledge (i) of any condition or event which constitutes an Event of Noncompliance, (ii) that any Person has given any notice to the Corporation or any of its Subsidiaries or taken any other action with respect to a claimed default or event of default under or breach of any instrument reflecting a Debt of the Corporation or any of its Subsidiaries in a principal amount in excess of $10,000,000, or (iii) of any condition or event that might have a Material Adverse Effect, a certificate of a Financial Officer specifying the nature and period of existence of any such condition or event, or specifying the notice given or action taken by such holder or Person and the nature of such claimed default, Event of Noncompliance, event or condition, and what action the Corporation has taken, is taking and proposes to take with respect thereto;
(g) promptly upon any officer of the Corporation obtaining knowledge of (i) the institution of, or threat of any action, suit, proceeding, governmental investigation or arbitration against or affecting the Corporation or any of its Subsidiaries or any property of the Corporation or any of its Subsidiaries not previously disclosed by the Corporation to the Holder, or (ii) any material development in any action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, might have a Material Adverse Effect, the Corporation shall promptly give notice thereof to the Holder and provide such other information as may be reasonably available to it to enable the Holder and its counsel to evaluate such matters;
(h) promptly upon their becoming available, copies of the annual, quarterly and other regular periodic reports which each Insurance Subsidiary is required to submit to the insurance commissioner of the State of Arizona or other Governmental Authorities;
(i) with reasonable promptness after the execution thereof, copies of all agreements (and in the case of commercial paper, notes or medium-term notes issued by the Corporation, the forms of such notes) evidencing any Debt of the Corporation or any of its Subsidiaries in an amount of $10,000,000 or more and of any amendments to or waivers under any such agreement;
(j) promptly upon the occurrence thereof, a written notice, in reasonable detail, of any purchase by the Corporation of (i) capital stock of the Corporation in an amount of $5,000,000 or more in any one transaction or in an aggregate amount of $7,500,000 or more in any one fiscal year or (ii) any purchase or redemption of any preferred stock of the Corporation in an aggregate amount of $7,500,000 or more in any one fiscal year;
(k) with reasonable promptness, such other information regarding and data with respect to the operations, business affairs and financial condition of the Borrower Corporation or any of its Relevant Subsidiaries, or compliance with Subsidiaries as from time to time may be reasonably requested by the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender)Holder; and
(fl) no later than one hundred promptly upon the occurrence thereof, and twenty (120) days following the first day of each fiscal year of the Borrowerin any event within five days, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case notice of a budget on the first day Change of the applicable fiscal year)Control, the obligations in clauses (a)and, (b) and (f) of this Section 5.04 as promptly thereafter as possible, such information as may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that reasonably available to the extent Corporation to enable the Holder and its counsel to evaluate such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECmatter.
Appears in 1 contract
Sources: Series B Preferred Stock Purchase Agreement (U Haul International Inc)
Financial Statements, Reports, etc. Furnish The Borrower will furnish to the Administrative Agent (Agent, which will promptly shall furnish such information to the Lenders):each Lender:
(a) as soon as available, and in any event within 120 150 calendar days after the end of each fiscal yearyear (to the extent any Loan remains outstanding), a consolidated its unaudited financial statements and balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position condition of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis prepared in accordance with GAAPGAAP applied on a consistent basis;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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, ;
(iic) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent extent any Loan remains outstanding, as soon as available and (iii) certifying that the Mortgage Requirement is satisfied at in any event within 60 calendar days after the end of each financial quarter (other than the applicable fourth fiscal periodquarter), its unaudited financial statements and balance sheet showing the financial condition of the Borrower as of the close of such financial quarter and the results of its operations during such quarter, all prepared in accordance with GAAP applied on a consistent basis subject to year-end adjustments and the absence of footnotes;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the any delivery of financial statements under Section 5.04(a)paragraph (c) above, a certificate executed by of a Responsible Officer certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the Borrower certifying compliance with Section 5.02(c) nature and providing evidence of such compliance, including without limitation copies of extent thereof and any flood hazard determination forms required corrective action taken or proposed to be delivered pursuant to Section 5.02(c)taken with respect thereto;
(e) 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
(f) promptly, from time to time, such other information regarding the its operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiariescondition, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender may reasonably request (for itself or on behalf of any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECrequest.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly The Borrowers shall furnish such information to the Lenders):
(a) within 120 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of each Lender the following, each in such accountants (which opinion form and such detail as the Administrative Agent or the Required Lenders shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;reasonably request:
(bi) within 60 As soon as available and in no event later than forty-five (45) days after the end last day of each of the first three fiscal quarters of each fiscal year, year of the Borrowers (i) a copy of the Financial Statements of the Borrowers and all Subsidiaries of the Borrowers (prepared on a consolidated balance sheet and related statements consolidating basis) for such quarter (beginning with the first quarter after the Funding Date) and for the fiscal year to date, certified by a Responsible Officer of each Borrower to present fairly in all material respects the financial condition, results of operations and cash flows showing the financial position of the Borrower other information reflected therein and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;
(d) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer narrative from management of the Borrower certifying compliance with Section 5.02(c) Borrowers which discusses results and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)prospects;
(eii) promptly, from time to time, such other information regarding the operations, business affairs As soon as available and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) no event later than one hundred and twenty five (120105) days following after the first day close of each fiscal year of the BorrowerBorrowers, (A) copies of the audited consolidated and unaudited consolidating Financial Statements of the Borrowers and all Subsidiaries of the Borrowers (prepared on a consolidated and consolidating basis, as applicable) for such year, audited (as to the consolidated Financial Statements) by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and accompanied by copies of the unqualified opinions delivered by such accountants in connection with all such Financial Statements;
(iii) Contemporaneously with delivery of the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), (x) a compliance certificate of a Responsible Officer of the Borrowers in substantially the form of Exhibit L (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 budget statement as to the nature thereof and what action the Borrowers propose 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 possible and in no event later than five (5) Business Days after any Loan Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Loan Party involving potential monetary damages payable by any Loan Party of $250,000 or more (alone or in the aggregate) or in which injunctive relief or similar relief is sought, which if adversely determined (and there exists a reasonable possibility of such an adverse determination), could reasonably be expected to result in a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, including (I) breach or non-performance of, or any default under, a Contractual Obligation of a Borrower or any Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between a Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any material development in, any litigation or proceeding affecting a Borrower or any Guarantor, including pursuant to any applicable Environmental Laws; (D) any Default, or (E) any material change in accounting policies of or financial reporting practices by the applicable Loan Party, the statement of a Responsible Officer of the Borrowers setting forth details of such event, condition or Default and the action which the Borrowers propose to take with respect thereto;
(v) Promptly, 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 the Borrowers or any Subsidiary with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports); (B) all reports, proxy statements and financial statements sent or made available by such Borrower or any Subsidiary to its security holders; and (C) all press releases and other similar public announcements concerning any material developments in the business of the Borrowers or any of their Subsidiaries made available by the Borrowers or any of their Subsidiaries to the public generally;
(vi) As soon as available and in no event later than five (5) Business Days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(vii) As soon as available, and in any event not later than thirty (30) days prior to the commencement of each fiscal year of the Borrowers, projected financial statements of the Loan Parties for such fiscal year year, including, in form customarily prepared by the Borrower; provided thateach case, if the Holding Company Condition is satisfied as projected balance sheets, statements of income and retained earnings and statements of cash flow of the date Loan Parties, all in reasonable detail.
(viii) As soon as available, and in any event not later than thirty (30) days after the end of each month, monthly Financial Statements of the relevant financial statements Loan Parties for such month (as well as a comparison of the performance of the Borrowers for such month during the prior year), prepared in accordance with GAAP.
(ix) As soon as possible and, to the extent not prohibited by applicable law, not later than five (5) Business Days prior to (or to the extent applicable law prohibits prior disclosure or in the case of casualty events, not later than five (5) Business Days after) the occurrence of any event or circumstance that would require a budget on the first day of the applicable fiscal yearprepayment pursuant to Section 2.07(c), the obligations statement of a Responsible Officer of the Borrowers setting forth the details thereof;
(x) As soon as possible and, to the extent not prohibited by applicable law, not later than five (5) Business Days prior to (or to the extent applicable law prohibits prior disclosure or in clauses the case of casualty events, not later than five (a5) Business Days after) the establishment or acquisition by a Borrower or any Subsidiary of a Borrower of any new Subsidiary or any new Equity Securities of any existing Subsidiary or any liquidation or dissolution of a Subsidiary under Section 5.02(d)(iv);
(xi) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by a Borrower or any Subsidiary of a Borrower, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law, or any notice or assertion of liability of a Borrower or any Subsidiary of a Borrower for Environmental Damages, in each case, which could reasonably be expected to have a Material Adverse Effect;
(bxii) As soon as possible and in no event later than five (f5) Business Days after the receipt thereof by any Borrower or any Subsidiary, copies of this Section 5.04 may be satisfied any and all material notices and other material adverse communications from any Governmental Authority or Gaming Authority with respect to financial information any Loan Party or any Gaming Facility (including copies of the Borrower Nevada “Regulation 6.090 Report” and “6-A Report” and any other written communication to a Loan Party from any Gaming Authority advising it of a violation of or non-compliance with any Gaming Law by a Loan Party) and promptly upon the Restricted Subsidiaries request of the Administrative Agent or any Lender, copies of any and all periodic or special reports filed by furnishing the applicable financial statements of Crestwood Equity Partners; provided that any Loan Party with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility;
(xiii) As soon as possible and in no event later than ten (10) days prior to the extent such information relates acquisition by any Loan Party of any leasehold or ownership interest in real property, including the RV Park Option, a written supplement to Crestwood Equity PartnersSchedule 4.01(h);
(xiv) As soon as possible and in no event later than five (5) Business Days after the receipt thereof by any Borrower or any Subsidiary, the Borrower shall promptly provide to the Administrative Agent, upon request copies of any and all notices received from the Administrative AgentNDOT terminating or evidencing an intent to terminate the RedHawk NDOT Lease; and
(xv) Such other instruments, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partnersagreements, on the one handcertificates, opinions, statements, documents and the information relating to the Borrower properties, operations or condition (financial or otherwise) of the Loan Parties, and compliance by the Borrowers with the terms of this Agreement and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to Credit Documents as the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECor any Lender may from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Sands Regent)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):Agent:
(a) within 120 105 days after the end of each fiscal year, a its consolidated balance sheet and related statements of operationsincome, stockholders’ equity and cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal year and the consolidated results of their operations during such year and setting forth in year, together with comparative form the corresponding figures for the prior immediately preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all (except with respect to such reconciliation) audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered qualified in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such auditmaterial respect) to the effect that such consolidated financial statements present fairly present, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related statements of operations income, stockholders’ equity and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of and for such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year year, and setting forth in comparative form the corresponding figures for the corresponding same periods of in the prior immediately preceding fiscal year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements)year, all certified by Crestwood GP or a Financial Officer one of the Borrower, on behalf of the Borrower, its Responsible Officers as presenting fairly presenting, in all material respects, respects the financial position condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of Crestwood GP or Compliance Certificate executed by a Financial Responsible Officer of the Borrower (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) setting forth a computation of the Financial Performance Covenants computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 7.05 and (iii) certifying that stating whether any material change in GAAP or in the Mortgage Requirement is satisfied at application thereof has occurred since the end date of the applicable fiscal periodaudited financial statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) (i) upon promptly after the consummation same become publicly available, copies of (A) any Permitted Business Acquisitionall periodic and other reports, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to proxy statements and other materials filed by the Borrower of Equity Interests in or any Person acquired pursuant Subsidiary with the SEC, or with any national securities exchange, or distributed to a Group Acquisitionits shareholders generally, in each case if the aggregate consideration for such transaction (or, in as the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c)may be;
(e) [reserved];
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statementsthis Agreement, as in each case the Administrative Agent or any Lender may reasonably request;
(g) promptly, following a request (for itself or on behalf of 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. Documents required to be delivered pursuant to this Section 6.04 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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); and
provided, that: (fi) no later than one hundred the Borrower shall deliver paper copies of such documents required to be delivered pursuant to Section 6.04(a) and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) 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 (fii) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to notify the Administrative Agent, upon request from Agent (by telecopier or electronic mail) of the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent posting of any such documents required to be delivered pursuant to Section 5.04 6.04(a) and (b). 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 for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of 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 upon the written request of the Administrative Agent (w) all Borrower Materials that are included in materials filed with to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the SEC, such documents word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (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 under this Agreement and the Joint Lead 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 date such documents are made publicly available by the SECPlatform not designated “Public Side Information.”
Appears in 1 contract
Sources: Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. Furnish The Borrower shall deliver or cause to be delivered to the Administrative Agent Lender:
(which will promptly furnish 1) Not later than 60 days after the end of each first, second and third fiscal quarter, a copy of the Borrower's 10-Q as filed with the Securities and Exchange Commission or if such information filing is no longer required, a balance sheet and a statement of revenues and expenses of the Borrower and a statement of cash flow of the Borrower for such fiscal quarter and for the period beginning on the first day of the fiscal year and ending on the last day of such fiscal quarter (in sufficient detail to indicate the Lenders):
Borrower's compliance with the financial covenants set forth in this Article 7), together with statements in comparative form for the corresponding periods in the preceding fiscal year, and certified by the chief executive officer, president or chief financial officer of the Borrower; each certificate provided pursuant to this clause (1) shall state that, except as disclosed in such certificate (a) within 120 on the date of such certificate the representations and warranties set forth in this Agreement and all the other Loan Documents are true and correct in all material respects on and as of such date with the same effect as though such representations and warranties had been made on such date, and (b) no Default or Event of Default has occurred and is continuing as of such date or, if such certificate discloses that a Default or Event of Default has occurred and is continuing as of such date, such certificate shall describe such Default or Event of Default in reasonable detail and state what action, if any, the Borrower are taking or propose to take with respect thereto.
(2) Not later than 105 days after the end of each fiscal year, a consolidated copy of the Borrower's 10-K as filed with the Securities and Exchange Commission or if such filing is no longer required, financial statements (including a balance sheet sheet, a statement of revenues and related statements expenses, a statement of operations, changes in shareholders' equity and a statement of cash flows and owners’ equity showing the financial position flow) of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of for such fiscal year and (in sufficient detail to indicate the consolidated results of their operations during such year and setting Borrower's compliance with the financial covenants set forth in this Article 7), together with statements in comparative form the corresponding figures for the prior preceding fiscal year (or in lieu of such audited financial statements of the Borrower and the Restricted Subsidiariesyear, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such certified public accountants (acceptable to the Lender, which opinion shall be without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to the maturity of the Facilities for an opinion delivered state in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a consistent basis, and (C) present fairly present, in all material respects, the financial position condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;for the periods covered.
(b3) within 60 With the financial statements submitted under Sections 7.3(1), 7.3(2) and 7.3(8), a certificate signed by the party certifying said statement to the effect that no Event of Default, nor any event that, upon notice or lapse of time or both, would constitute an Event of Default, exists or, if any such Event of Default exists, specifying the nature and extent thereof.
(4) Together with the financial statements required by paragraphs (1) and (2) above, a compliance certificate duly executed by an Authorized Representative of the Borrower substantially in the form of Exhibit D attached hereto evidencing compliance with the covenants set forth in Section 7.8 (a "Compliance Certificate").
(5) Contemporaneously with the distributions thereof to the Borrower's stockholders or the filing thereof with the Securities and Exchange Commission, as the case may be, copies of all statements, reports, notices and filings distributed by the Borrower to its stockholders or filed with the Securities and Exchange Commission.
(6) Promptly upon receipt thereof, copies of all other reports, management letters and other documents submitted to it by independent accountants in connection with any annual or interim audit of its books made by such accountants.
(7) Promptly after the Borrower knows or has reason to know of the occurrence of any "reportable event" under Section 4043 of ERISA applicable to the Borrower or other ERISA Affiliate, a certificate of the chief executive officer, president or chief financial officer of the Borrower setting forth the details as to such "reportable event" and the action that the Borrower or other ERISA Affiliate has taken or will take with respect thereto, and promptly after the filing or receiving thereof, copies of all reports and notices that any Borrower or other ERISA Affiliate files under ERISA with the Internal Revenue Service or the PBGC or the United States Department of Labor.
(8) Not later than 23 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case 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 and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (4 or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all certified by Crestwood GP or a Financial Officer of the Borrower, on behalf 5 week accounting period of the Borrower, as fairly presentingapplicable, in all material respectsor if the Borrower no longer uses 4 and 5 week accounting periods, not later than 23 days after the financial position end of each calendar month, a balance sheet and results a statement of operations revenues and expenses of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence statement of footnotes);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer cash flow of the Borrower for such period (i) certifying that no Event in sufficient detail to indicate the Borrower's compliance with the financial covenants set forth in Article 7 of Default this Agreement, certified by the chief executive officer, president 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) setting forth a computation chief financial officer of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period;Borrower.
(d9) (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);
(e) promptly, from time to timeAs soon as practicable, such other information regarding the operationsbusiness affairs, business affairs and financial condition or operations of the Borrower or any of its Relevant Subsidiaries, or compliance with as the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may Lender shall reasonably request (for itself from time to time or on behalf of at any Lender); and
(f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing the applicable financial statements of Crestwood Equity Partners; provided that to the extent such information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SECtime.
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