Financial Statements and Other Reports. (a) The Company will, as soon as practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i); (b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii); (c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission; (d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and (e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan; (f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and (g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Electric Capital Corp)
Financial Statements and Other Reports. (a) The Company willwill maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Company will deliver to each Lender and the Agent:
(i) as soon as practicable available and in any event within 60 30 days after the end of each quarterly period month ending after the Closing Date, (other than 1) the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its Subsidiaries and the consolidating balance sheets of the Company and the Material Subsidiaries, in each case as at the end of such month, and (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows, in each case for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly periodmonth, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding periods of the previous fiscal year and a the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.1(x), all in reasonable detail and certified by the chief financial officer or the controller of the Company that they fairly present the financial condition of such entities as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(ii) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, (1) the consolidated balance sheet of the Company and its Subsidiaries and the consolidating balance sheets of the Company and the Material Subsidiaries as of at the end of such quarterly periodfiscal quarter, (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal yearyear and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.1(x), all in reasonable detail and certified by an authorized the chief financial officer or the controller of the CompanyCompany that they fairly present, in all material respects, the financial condition of each the Company and its Subsidiaries and the Company and the Material Subsidiaries, as the case may be, at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause and (iii3) below of a copy of only if the Quarterly Report Company does not file quarterly reports on Form 10-Q with the Commission, a narrative report describing the operations of the Company and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such quarterly fiscal quarter and for the period filed with from the Commission shall be deemed beginning of the then current fiscal year to satisfy the requirements end of this clause (i)such fiscal quarter;
(biii) The Company will, as soon as practicable available and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of (1) the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries and the consolidating balance sheets of the Company and the Material Subsidiaries as of at the end of such fiscal year, (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year and the corresponding figures from the preceding consolidated plan and financial forecast for the current fiscal yearyear delivered pursuant to Section 5.1(x) for the fiscal year covered by such financial statements, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected certified by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of chief financial officer or the Annual Report on Form 10-K controller of the Company for such fiscal year filed with that they fairly present in all material respects the Commission shall be deemed to satisfy the requirements financial condition of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and the Company and the Material Subsidiaries, as the case may be, at the dates and the results of their operations and their cash flows for the periods indicated, (ii3) the Company's compliance annual report on form 10-K for such year, (4) only if the Company does not file annual reports on Form 10-K with the Retail Plan and Commission, a narrative report describing the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness operations of the Company and its Subsidiaries and(in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in annual reports on Form 10-K) prepared for such fiscal year, with reasonable promptnessand (5) in the case of such consolidated financial statements, furnish a report thereon of independent certified public accountants of recognized national standing, which report shall be unqualified as to each Purchaser scope of audit, shall express no doubts about the ability of the Company and its Subsidiaries to continue as a going concern, and shall state that such other consolidated financial and other data statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably requestfinancial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iv) together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, an Officers' Certificate of the Company stating that the signers have reviewed the terms of this Agreement and the Notes and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as of the date of the Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(v) together with each delivery of consolidated financial statements pursuant to Section 5.1(iii) above, a written statement by the independent certified public accountants giving the report thereon (a) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default that relates to accounting matters has come to their attention and, if any such condition or event has come to their attention, specifying the nature and period of existence thereof; provided that such accountants shall not be liable by reason of any failure to obtain knowledge of any such Event of Default that would not be disclosed in the course of their audit examination, and (b) stating that based on their audit examination nothing has come to their attention that causes them to believe that the information set forth and as defined in the certificates delivered therewith is not fairly stated, in all material respects, in relation to the financial statements from which it has been derived;
(vi) promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all reports in final form (other than reports of a routine or ministerial nature which are not material) submitted to the Company by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of the Company and its Subsidiaries made by such accountants, including, but not limited towithout limitation, operating any comment letter submitted by such accountants to management in connection with their annual audit;
(vii) promptly upon the sending or filing thereof, copies of (a) all financial information for each retail store owned statements, reports, notices and proxy statements sent or operated made available generally by the Company to their security holders or by any Subsidiary of the Company to its security holders other than the Company or another Subsidiary of the Company, (b) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental authority (other than reports of a routine or ministerial nature which are not material), and (c) all press releases and other statements made available generally by the Company or any of its Subsidiaries to the public concerning material developments in the business of the Company or any of its Subsidiaries;
(viii) promptly upon any executive officer of the Company obtaining actual knowledge (a) of any condition or event which constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender or Agent has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement, (b) that any Person has given any notice to the Company or any Subsidiary of the Company or taken any other action with respect to a claimed default or event or condition which could reasonably be expected to result in an Event of Default referred to in Section 7.2, or (c) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officers' Certificate 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 Default, Potential Event of Default, event or condition, and what action the Company has taken, is taking and proposes to take with respect thereto;
(ix) promptly upon any executive officer of the Company obtaining actual knowledge of (X) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, "Proceedings") not previously disclosed in writing by the Company to Lenders or (Y) any material development in any Proceeding that, in any case:
(1) has a reasonable possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the Transactions; written notice thereof together with such other information as may be reasonably available to the Company or any of its Subsidiaries to enable Lenders and their counsel to evaluate such matters;
(x) as soon as practicable but in any event no later than 40 days following the first day of each fiscal year a forecast for each of the twelve months of the current year of the consolidated balance sheet and the consolidated statements of income, cash flow and cash position of the Company and its Subsidiaries and the consolidating balance sheet and the consolidating statements of income, cash flow and cash position of the Company and the Material Subsidiaries, together with an outline of the major assumptions upon which the forecast is based. Together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, the Company shall deliver a comparison of the current year to date financial results against the budget required to be submitted pursuant to this Section;
(xi) in writing, promptly upon an executive officer of the Company obtaining actual knowledge that the Company or any of its Subsidiaries has received notice of any claim, demand, action, report or investigation of any potential or actual liability arising in connection with (x) the non-compliance with or violation of the requirements of any Environmental Law which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (y) the release or threatened release of any Hazardous Material, substance or constituent into the environment which, in any such case referred to in (x) or (y), could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or which release the Company or any of its Subsidiaries would have a duty to report to a Tribunal under an Environmental Law, or (z) the existence of any Environmental Lien on any properties or assets of the Company or any of its Subsidiaries;
(xii) promptly after the availability thereof, copies of all material amendments to the certificate of incorporation or by-laws of the Company or any of its Subsidiaries;
(xiii) promptly upon any Person becoming a Subsidiary of the Company, a written notice setting forth with respect to such Person (a) the date on which such Person became a Subsidiary of the Company and (b) all of the data required to be set forth in Schedule B with respect to all Subsidiaries of the Company; and 73
(xiv) with reasonable promptness, such other information and data with respect to the Company or any of its Subsidiaries or any of their respective property, business or assets as from time to time may be reasonably requested by any Lender; provided that no information or data shall be required to be delivered hereunder or under any other provision of this Agreement if it would violate any applicable attorney-client or accountant-client privilege.
(xv) as soon as available, the audited, unaudited and pro forma financial statements meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended, of the Company and each Subsidiary Guarantor.
Appears in 1 contract
Sources: Senior Credit Agreement (Young America Holdings Inc)
Financial Statements and Other Reports. Holdings will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver to Agent and Lenders:
(ai) The Company will, Fiscal Period Financials: as soon as practicable and in any event within 60 30 days (or (a) in the case of the first Fiscal Period of each Fiscal Year, 50 days (provided that such delivery shall be within 30 days if Company's management information system permits), (b) in the case of the last Fiscal Period in any Fiscal Quarter (other than the last Fiscal Quarter in any Fiscal Year), 45 days or (c) in the case of the last Fiscal Period in any Fiscal Year, 90 days) after the end of each quarterly period Fiscal Period ending after the Closing Date, (other than 1) the last quarterly period) in each fiscal year, furnish to THLi statements consolidated balance sheets of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries as at the 111 119 end of such Fiscal Period, (2) the related consolidated statements of operations, stockholders' equity and cash flows of Company and its Subsidiaries, and (3) a schedule containing a summary of sales and a summary of comparable store sales growth, in each case for each of Company and its Subsidiaries on a consolidated basis, the Dominick's division and the Omni division, in each case for such Fiscal Period and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearFiscal Period, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearconsolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all in reasonable detail and examined certified by the chief financial officer of Company that they fairly present the financial condition of such entities as at the dates indicated and reported on the results of its operations and its cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(ii) Quarterly Financials: as soon as practicable and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year and within 90 days after the end of the fourth Fiscal Quarter of each Fiscal Year, the consolidated balance sheets of each of Holdings and its Subsidiaries and of Company and its Subsidiaries, in each case as at the end of such Fiscal Quarter and the related consolidated statements of operations, stockholders' equity and cash flows of each of Holdings and its Subsidiaries and Company and its Subsidiaries, as applicable, for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all in reasonable detail and certified by the chief financial officer of Company that they fairly present the financial condition of each of Holdings and its Subsidiaries and Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(iii) Year-End Financials: as soon as practicable and in any event within 90 days after the end of each Fiscal Year, (a) the consolidated balance sheets of each of Holdings and its Subsidiaries and Company and its Subsidiaries, in each case as at the end of such Fiscal Year and the related consolidated statements of operations, stockholders' equity and cash flows of each of Holdings and its Subsidiaries and Company and its Subsidiaries, as applicable, for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding 112 120 figures from the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii) for the Fiscal Year covered by such financial statements, all in reasonable detail and certified by the chief financial officer of Company that they fairly present the financial condition of each of Holdings and its Subsidiaries and Company and its Subsidiaries, as the case may be, as at the dates and the results of their operations and their cash flows for the periods indicated, and (b) in the case of such consolidated financial statements, (1) a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by the Company; providedCompany and satisfactory to Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed unqualified as to satisfy scope of audit, shall express no doubts about the requirements ability each of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies Holdings and its Subsidiaries and of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries to continue as a going concern, and (ii) shall state that such consolidated financial statements fairly present the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies consolidated financial position of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies each of any compliance certificates furnished to lenders in respect of indebtedness of the Company Holdings and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably requestfinancial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and (2) a letter from Ernst & Young LLP or other independent certified public accountants, includingsubstantially in the form of Exhibit XI annexed hereto with such changes as are approved by Agent, but not limited to, operating acknowledging that Lenders will receive such consolidated financial information for each retail store owned or operated by the statements and such report and will use such financial statements and report in their credit analyses of Holdings and its Subsidiaries and Company or any of and its Subsidiaries.;
(iv) Officers', Margin Determination and Compliance Certificates: (a) together with each delivery of financial statements of Holdings and its Subsidiaries and Company and its Subsidiaries pursuant to subdivisions (ii) and (iii) above, (1) an Officers' Certificate of Company stating that the signers have reviewed the terms of this Agreement and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of each of Holdings and its Subsidiaries and Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as at the date of such Officers' Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Company has taken, is taking and proposes to take with respect thereto; (2) a Margin Determination Certificate demonstrating in reasonable detail the Leverage Ratio for the four consecutive
(3) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7; (b) together with each delivery of financial statements of Holdings and its Subsidiaries and Company and its Subsidiaries pursuant to subdivision (ii) above, (x) a written notice of the acquisition of any Store Land Property during the Fiscal Quarter covered by such financial statements, which notice shall include the purchase price of each such Store Land Property, and (y) a written notice of any sale of any Store Land Property during such Fiscal Quarter, which notice shall include the sale price and the purchase price of each such Store Land Property; and (c) within 100 days after the beginning of each Fiscal Year (other than Fiscal Year 1997) and in any event on or prior to the date of any mandatory prepayments made pursuant to subsection 2.4B(iii)(c) during such Fiscal Year, an Officers' Certificate of Company setting forth the Consolidated Excess Cash Flow for the Fiscal Year covered by such financial statements and the Leverage Ratio for such Fiscal Year and demonstrating in reasonable detail the derivation of such Consolidated Excess Cash Flow and such Leverage Ratio;
Appears in 1 contract
Financial Statements and Other Reports. The Issuer will deliver, or will cause to be delivered, to each holder of a Note that is an Institutional Investor:
(a) The Company will, as Quarterly Financial Statements for the Parent Guarantor and its Subsidiaries. As soon as practicable available and in any no event within 60 later than the earlier of (i) the date that is forty- five (45) days after the end of each quarterly period Fiscal Quarter of each Fiscal Year (other than excluding the last quarterly periodfourth Fiscal Quarter), or (ii) in each fiscal yearthe date that is ten (10) days after the filing of Parent Guarantor’s Quarterly Report on Form 10-Q (“Form 10-Q”) with the SEC for such Fiscal Quarter, furnish to THLi the consolidated balance sheets of the Parent Guarantor and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of consolidated net income income, stockholders’ equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company Parent Guarantor and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal yearcorresponding periods of the previous Fiscal Year, all in reasonable detail detail, together with (x) a Financial Officer Certification with respect thereto and examined (y) a statement of the consolidated Funds From Operations of the Parent Guarantor and reported its Subsidiaries; (b) Audited Annual Financial Statements for the Parent Guarantor and its Subsidiaries. As soon as available and in no event later than the earlier of (x) the date that is ninety (90) days after the end of each Fiscal Year, or (y) the date that is ten (10) days after the filing of Parent Guarantor’s Annual Report on by Form 10-K (the “Form 10-K”) with the SEC for such Fiscal Year, (i) the consolidated balance sheets of the Parent Guarantor and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail, together with (x) a Financial Officer Certification with respect thereto and (y) a statement of the consolidated Funds From Operations of the Parent Guarantor and its Subsidiaries; and (ii) with respect to such consolidated financial statements a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by the Company; providedParent Guarantor, howeverwhich report shall be unqualified as to going concern and scope of audit, and shall state that delivery pursuant to clause (iii) below of a copy such consolidated financial statements fairly present, in all material respects, the consolidated financial position of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company Parent Guarantor and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated statements) and that the examination by the Company or any of its Subsidiaries.such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards);
Appears in 1 contract
Sources: Note Purchase and Guarantee Agreement (Physicians Realty Trust)
Financial Statements and Other Reports. (a) The Company will, as soon as practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; providedPROVIDED, howeverHOWEVER, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; providedPROVIDED, howeverHOWEVER, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Financial Statements and Other Reports. From and after the Closing until the Threshold Ownership Date, the Company shall deliver to the Investors:
(a) The Company will, as soon as practicable and in any event within 60 days after no later than the end of day that a Form 10-Q is filed by the Company with the SEC following each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi consolidated statements of consolidated net income operations, statements of stockholders’ equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, period setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial together with a certificate from a senior officer of the Company, Company to the effect that such financial statements have been prepared in accordance with GAAP consistently applied during the periods involved (subject to changes resulting from year-end adjustments) and that such financial statements fairly present in all material respects the consolidated financial position, results of operations and cash flows of the Company as of and for the period then ended; provided, however, that delivery pursuant to clause (iii) below of a copy the timely filing with the SEC of the Quarterly Report Company’s periodic report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (iSection 3.7(a);
(b) The Company will, as soon as practicable and in any event within 100 days after no later than the day that a Form 10-K is filed by the Company with the SEC following the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of operations, statements of stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by together with the audit report of independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy the timely filing with the SEC of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (iiSection 3.7(b);; and
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such other financial statements, proxy statements, notices and reports information as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC Investors may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Securities Purchase Agreement (PostRock Energy Corp)
Financial Statements and Other Reports. Company will deliver to Administrative Agent for further distribution (and which Administrative Agent shall promptly distribute) to each Lender, in form and detail reasonably satisfactory to Administrative Agent:
(a) The Company will, as soon as practicable available and in any event within 60 twenty-five (25) days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the first two (2) months of each Fiscal Quarter ending after the Closing Date (such reports, the "MONTHLY REPORTS"), (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such month and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such month and (ii) for any Monthly Reports delivered after the first anniversary of the Closing Date, for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth beginning with the monthly financial statements for fiscal year 2005, in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding fiscal yearprevious Fiscal Year, all in reasonable detail detail, together with a CFO Certification and certified by an authorized financial officer MD&A with respect to each of the Company, subject to changes resulting from year-end adjustmentsforegoing; provided, however, that delivery during any period in which the Leverage Ratio as of the last day of the immediately preceding Fiscal Quarter (determined for any such period by reference to the most recent Compliance Certificate delivered pursuant to clause (iiiSection 5.1(d) below of a copy of calculating the Quarterly Report on Form 10-Q of the Leverage Ratio) is 4.50:1.00 or less, Company shall not be required to deliver any Monthly Reports required by this Section 5.1(a) for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)period;
(b) The Company will, as soon as practicable available and in any event within 100 forty-five (45) days after the end of the first three (3) Fiscal Quarters of each fiscal yearFiscal Year, furnish to THLi the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of consolidated net income income, stockholders' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, Fiscal Quarter and a consolidated balance sheet for the period from the beginning of the Company and its Subsidiaries as of then current Fiscal Year to the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, all in reasonable detail detail, together with (i) a quarterly accounts receivable exposure report for such Fiscal Quarter in the form prepared by management of Company in the ordinary course of business and examined (ii) a CFO Certification and reported on an MD&A with respect thereto;
(c) as soon as available and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a CFO Certification and an MD&A with respect thereto; and (ii) in the case of such consolidated financial statements, a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant Company and in form and substance reasonably satisfactory to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the CommissionAdministrative Agent;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies together with each delivery of all financial reporting packages prepared for management statements of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;
(i) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Company and its Subsidiaries delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent; and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
promptly upon receipt thereof (f) The Company will promptly furnish to THLi unless restricted by applicable professional standards), copies of any reports furnished all final management letters submitted to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders by independent certified public accountants in respect of indebtedness connection with each annual, interim or special audit of the financial statements of Company and its Subsidiaries andmade by such accountants, including any comment letter submitted by such accountants to management in connection with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.their annual audit;
Appears in 1 contract
Financial Statements and Other Reports. Deliver to Administrative Agent, in form and detail satisfactory to Administrative Agent:
(a) The Company will, as soon as practicable and available, but in any event within 60 days after the end of each quarterly period ninety (other than the last quarterly period90) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements year of consolidated net income and cash flows and a statement of changes Borrower (or in consolidated stockholders' equity the case of the Company and its Subsidiaries for such yearfiscal year ending December 31, and 2008, one hundred fifty (150) days), a consolidated balance sheet of the Company Borrower and its Subsidiaries subsidiaries, as of determined in accordance with GAAP, as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the corresponding figures from for the preceding previous fiscal year, all in reasonable detail and examined prepared in accordance with GAAP, audited and reported on accompanied by a report and opinion of an independent certified public accountants accountant of nationally recognized national standing selected by reasonably acceptable to Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and shall not be subject to any qualification or exception (other than with respect to the Company; providedCases) as to the scope of such audit;
(b) as soon as available, however, that delivery pursuant to clause but in any event within forty-five (iii45) below days after the end of a copy each of the Annual Report on Form 10-K first three (3) fiscal quarters of each fiscal year of Borrower (or in the case of the Company fiscal quarter ending September 30, 2008, one hundred twenty (120) days), a consolidated balance sheet of Borrower and its subsidiaries, as determined in accordance with GAAP, as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of Borrower’s fiscal year filed then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by a Responsible Officer of Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of Borrower and its subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the Commission shall be deemed to satisfy the requirements absence of this clause (ii)footnotes;
(c) The Company willas soon as available, promptly but in any event within forty-five (45) days after the end of each fiscal quarter of each fiscal year of Borrower (or in the case of the fiscal quarter ending September 30, 2008, the period specified in Section 6.01(b) for the financial statements for such quarter), updates to Schedule 5.11 (upon transmission thereofthe deliveries of such updates, furnish Schedule 5.11 shall be automatically updated, without any further consent from Administrative Agent or the Lenders) to the extent that such Schedule is not accurate or complete as of the last day of such fiscal quarter; provided that with respect to each Purchaser copies of all fiscal quarter ending December 31, such financial statements, proxy statements, notices and reports as it updates shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file be delivered concurrently with the Commissionfinancial statements referred to in Section 6.01(a) for the period ending on such December 31;
(d) The Company willon or before October 11, 2008, a revised financial forecast through March 31, 2010 for the Loan Parties. If Administrative Agent does not notify Borrower in writing within seven (7) Business Days of receipt of such revised forecast that such revised forecast is not reasonably acceptable to the Agents, such revised forecast shall become the “Final Budget” for purposes of this Agreement. It is understood and agreed that (i) such revised forecast will be reasonably acceptable to the Agents if it reflects (A) financial performance which is no worse in any material respect in the aggregate and in any fiscal quarter and (B) liquidity which is no worse in any material respect in the aggregate and in any fiscal quarter, in each case, from that reflected in the Initial Budget; provided that in the case of clause (A) above, (x) as to expenses, if the projected expenses are, in the aggregate and in any fiscal quarter, equal to or lower than those reflected in the Initial Budget and (y) as to revenues, if the projected revenues are, in the aggregate and in any fiscal quarter, equal to or greater than, in each case, those reflected in the Initial Budget then the financial performance referred to in clause (A) shall be deemed not to be worse in any material respect and (ii) Borrower shall, and shall cause its restructuring advisory firm to, provide information promptly after regarding such package becomes available, furnish to THLi copies revised forecast as reasonably requested by the Agents and their financial adviser in connection with their review of all financial reporting packages prepared for management of the Companysuch revised forecast; and
(e) Until the two-year anniversary of the First Closing Dateon Friday (or if Friday is not a Business Day, the Company will, as soon as practicable, and in any event within 5 days after the end next Business Day) of each monthweek, furnish to THLi and GECC detailed reportsa weekly report, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in each case in respect of indebtedness the prior week, of expenditures, receipts, disbursements and a reconciliation of actual expenditures, receipts and disbursements with those set forth in the latest 13-Week Forecast delivered pursuant to Section 6.02(f)(iv), in form reasonably satisfactory to the Agents. As to any information contained in materials furnished pursuant to Section 6.02(d), Borrower shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the Company obligation of Borrower to furnish the information and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial materials described in clauses (a) and other data of (b) above at the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiariestimes specified therein.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Wci Communities Inc)
Financial Statements and Other Reports. The Company will deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) The Company will, as soon as practicable and (i) no later than the date on which such financial statements are filed with the SEC but in any event within 60 no later than 45 days after the end of each quarterly period (other than of the last quarterly period) in first three fiscal quarters of each fiscal year, furnish to THLi the consolidated balance sheet of the Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of the first three fiscal quarters of each fiscal year and the related consolidated statements of consolidated net income income, stockholders’ equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company Company, its Subsidiaries and its Unrestricted Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, and a (ii) promptly when available but in any event no later than 45 days after the end of each of the first three fiscal quarters of each fiscal year, the consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal quarter and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal year, all in reasonable detail and certified (in the case of both clauses (i) and (ii) above) by an authorized the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company, its Subsidiaries and its Unrestricted Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable (i) no later than the date on which such financial statements are filed with the SEC and in any event within 100 no later than 90 days after the end of each fiscal year, furnish to THLi the audited consolidated balance sheet of the Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of each fiscal year and the related consolidated statements of consolidated net income income, stockholders’ equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company Company, its Subsidiaries and its Unrestricted Subsidiaries for such fiscal year, and a (ii) promptly when available but in any event no later than 90 days after the end of each fiscal year, the audited consolidated balance sheet of the Company and its Subsidiaries as of at the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures from for the preceding previous fiscal year, all in reasonable detail and examined certified (in the case of both clauses (i) and reported on (ii) above) by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company and its Subsidiaries as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year and (iii) in the case of both clauses (i) and (ii) above, a report thereon of a firm of independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant which report shall be unqualified as to clause (iii) below the scope of a copy audit or as to the going concern status of the Annual Report on Form 10-K Company, its Subsidiaries and its Unrestricted Subsidiaries or the Company and its Subsidiaries, as the case may be (in either case, taken as a whole), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial condition of the Company, its Subsidiaries and its Unrestricted Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year filed in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the Commission shall be deemed to satisfy the requirements of this clause (ii)examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(c) The together with each delivery of financial statements of the Company willand its Subsidiaries pursuant to subdivisions (a) and (b) above, promptly upon transmission a Compliance Certificate of the Company (i) stating that the applicable Responsible Officer does not have knowledge of the existence, as at the date of such Compliance Certificate, of any condition or event that constitutes a Default or Event of Default, or, if any such condition or event exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; (ii) demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the covenants set forth in Section 8.06 and with any specific dollar amounts specified in respect of any restrictions contained in any other provisions of Article VIII (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes); and (iii) setting forth any change in the identity of any of the Subsidiaries or Unrestricted Subsidiaries of the Company since the Closing Date (or, if applicable, since the date of the most recent Compliance Certificate delivered to Lenders in accordance with this clause (c));
(d) together with each delivery of consolidated financial statements of the Company and its Subsidiaries pursuant to Section 7.01(b) above, a written statement by the independent certified public accountants giving the report thereon stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default under Section 8.06 has come to their attention and, if such a condition or event has come to their attention, specifying the nature thereof, furnish except to each Purchaser the extent that the delivery of such statement would be prohibited by professional auditing standards applicable to such matters;
(e) promptly after the transmission thereof by the Company or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K, 10-Q, or 8-K and any effective registration statements (and, upon the effectiveness thereof, any material amendments thereto) filed with the SEC (but not any exhibits to any such registration statement or amendment (except as provided below) or any registration statement on Form S-8), and copies of all such financial statements, proxy statements, notices and reports that the Company or any of its Subsidiaries actually sends to the holders of any publicly-issued securities of the Company or any of its Subsidiaries in their capacity as it shall send such holders (in each case to the extent not theretofore delivered to Lenders pursuant to this Agreement and in each case including, to the extent requested by Administrative Agent, any schedules and exhibits thereto), in each case as so transmitted to the SEC;
(f) promptly upon any Responsible Officer of the Company obtaining actual knowledge of any condition or event that constitutes a Default or an Event of Default, a written notice specifying the nature and period of existence of such condition or event, and what action the Company has taken, is taking and proposes to take with respect thereto;
(g) promptly upon any Responsible Officer of the Company obtaining actual knowledge of (i) the institution of any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its stockholders Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, “Proceedings”) not previously disclosed in writing by the Company to Lenders or any material development in any Proceeding that, in any such case, could reasonably be expected to give rise to a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to the Company to enable Lenders and their counsel to evaluate such matters;
(h) promptly upon any Responsible Officer of the Company obtaining knowledge of the occurrence or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof and what action the Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto; promptly upon receipt thereof, copies of any notice received by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates from the Internal Revenue Service, the Department of Labor or the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event; concurrently with the delivery of such notices to the PBGC, to the extent not otherwise delivered to Administrative Agent under this Agreement, copies of all such registration statements (without exhibits)notices delivered to the PBGC pursuant to Sections 3.3, other than registration statements relating 3.4 and 4.4 of the Settlement Agreement, effective as of May 14, 1997, between Company and the PBGC; promptly upon execution thereof, copies of all amendments, modifications, waivers or supplements to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the CommissionPBGC Agreements;
(di) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, practicable and in any event within 5 no later than 60 days after the end beginning of each monthfiscal year, furnish to THLi consolidated operating and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by related budgets for the Company and its Subsidiaries for each fiscal quarter of such fiscal year, in reasonable detail as customarily prepared by management of the Company for its internal use and (ii) setting forth an explanation of the Company's compliance with the Retail Plan and the E-Commerce Planprincipal assumptions on which such budgets are based;
(fj) The Company will promptly furnish to THLi copies of upon any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness Responsible Officer of the Company and obtaining knowledge of any one or more of the following environmental matters the existence of which, either individually or when aggregated with all other such matters, would reasonably be expected to result in a Material Adverse Effect, a written notice specifying in reasonable detail the nature thereof:
(i) any pending or threatened Environmental Claim against the Company or any of its Subsidiaries andor any land, with reasonable promptness, furnish to each Purchaser such other financial buildings and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store improvements owned or operated leased by the Company or any of its Subsidiaries (but excluding all operating fixtures and equipment, whether or not incorporated into improvements) (collectively, “Real Estate”);
(ii) any condition or occurrence that (x) results in noncompliance by the Company or any of its Subsidiaries with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against the Company or any of its Subsidiaries or any Real Estate;
(iii) any condition or occurrence on any Real Estate that could reasonably be anticipated to cause such Real Estate to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Estate under any Environmental Law; or
(iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Estate;
(k) promptly upon any Responsible Officer of the Company obtaining actual knowledge thereof, written notice of:
(i) any announcement by ▇▇▇▇▇’▇ or S&P of any change in a Debt Rating;
(ii) any change in accounting policies or financial reporting practices by the Company or any Subsidiary that has a material impact on the consolidated financial statements of the Company and its Subsidiaries;
(iii) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (A) breach or non-performance of, or any default under, a Contractual Obligation of the Company or any Subsidiary; or (B) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; and
(l) with reasonable promptness, such other information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested by the Administrative Agent on its own behalf or on behalf of Required Lenders. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to this Section shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.01(e) (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 Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Company’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: (A) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company 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. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to any Borrower or its securities) (each, a “Public Lender”). Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, BAS, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective 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 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and BAS shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Financial Statements and Other Reports. Furnish to the Agent and the Banks (a) The Company will, as soon as practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable available and in any event within 100 days after the end of each fiscal yearyear of the Company, furnish to THLi audited consolidated financial statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its the Subsidiaries for consisting of a statement of income and reconciliation of capital accounts of such year, year and a consolidated related balance sheet of the Company and its Subsidiaries sheets as of the end of such year-end, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal year, all prepared in reasonable detail and examined and reported conformity with GAAP, applied on a basis consistent with that of the preceding year, certified, without qualification, by the accounting firm of Ernst & Young LLP or by any other independent certified public accountants of recognized national standing selected by reasonably satisfactory to the CompanyBanks; provided, however, that delivery pursuant to clause (iiib) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, available and in any event within 5 30 days after the end of each monthly accounting period of the Company, a copy of the unaudited financial statements of the Company and the Subsidiaries as of the end of each such period, prepared in conformity with GAAP (but without footnotes and subject to normal year-end adjustments) consisting of a balance sheet and a statement of income and surplus for the period from the beginning of the current fiscal year to the end of such accounting period, certified by the chief financial officer or chief accounting officer of the Company on behalf of the Company; (c) as soon as available and in any event within 100 days after the end of each fiscal year of the Parent, a copy of the audited consolidated financial statement of the Parent and its consolidated subsidiaries, including the opinion of the accounting firm of Ernst & Young LLP or of any other independent certified public accountants reasonably satisfactory to the Banks, and a copy of the 10-K report filed by the Parent with the Securities and Exchange Commission for such fiscal year; (d) as soon as available and in any event within 60 days after the close of each quarterly accounting period in each fiscal year of the Parent, a copy of the 10-Q report filed by the Parent with the Securities and Exchange Commission for such quarter; (e) as soon as available and in any event within 30 days after the end of each month, furnish a certificate in the form of Schedule 4.01(e) hereto (“Borrowing Base/Compliance Certificate”), prepared as of the last Business Day of such month; (f) as soon as available and in any event within 30 days after the end of each calendar month a servicing/delinquency report prepared as of the end of such month and showing with respect to THLi the Servicing Portfolio: the number of Mortgage Loans (including Mortgage Loans subject to Mortgage-backed Securities) included therein, the total principal amount thereof, investor type, geographic concentration, weighted average coupon, weighted average maturity, weighted average servicing fee, delinquency status and GECC detailed reportsforeclosure experience; (g) within five Business Days after the end of each calendar month, and an Inventory/Pipeline Report satisfactory to the Required Banks; (h) promptly upon their becoming available, copies of all audit reports prepared for FNMA, GNMA or FHLMC with respect to the Company or any other information THLi and GECC may reasonably request, relating to subservicer of the Company; (i) as promptly as practicable (but in any event not later than five Business Days) after the use President, Vice President-Finance or Treasurer of Proceeds the Company obtains actual knowledge of the occurrence of any Event of Default or Unmatured Event of Default, notice of such occurrence, together with a detailed statement by an officer of the Company on behalf of the Company of the steps being taken by the Company and its Subsidiaries to cure the Event of Default or Unmatured Event of Default; and (iij) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish from time to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries andtime, with reasonable promptness, furnish to each Purchaser such other further information regarding the business, affairs and financial and other data condition of the Company and its Subsidiaries as such Purchaser the Agent or any Bank may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Financial Statements and Other Reports. Prior to a Qualified IPO or the date on which the Company becomes a reporting company pursuant to Section 12 or Section 15(c) of the Exchange Act, so long as a Purchaser and its Affiliates and Associates beneficially own at least 15% of the shares of Series C Preferred Stock and/or Series D Preferred Stock originally purchased by such Purchaser hereunder (aor the Common Stock or Non-Voting Common Stock issuable upon conversion thereof) (subject to adjustment for stock splits, stock dividends, recapitalizations and similar transactions):
(i) The Company will, as soon as practicable and in any event within 60 30 days after the end of each month (other than the last month of any quarterly period) in each fiscal year, furnish to each Purchaser unaudited consolidated statements of net income, cash flows and changes in consolidated stockholders' equity of the Company for the period from the beginning of the then current fiscal year to the end of such month, and a consolidated balance sheet of the Company as of the end of such month, setting forth in each case in comparative form figures for the corresponding month or date in the preceding fiscal year and a comparison of such data with the Company's budget for such month, all in reasonable detail and certified by the Chief Financial Officer of the Company, subject to changes resulting from year-end adjustments.
(ii) The Company will, as soon as practicable and in any event within 30 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi each Purchaser unaudited consolidated statements of consolidated net income and income, cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then then-current fiscal year to the end of such quarterly period, and a the consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal yearyear and a comparison of such data with the Company's budget for such quarter, all in reasonable detail and certified by an authorized financial officer the Chief Financial Officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause .
(iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi each Purchaser audited consolidated statements of consolidated net income and income, cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year and a comparison of such data with the Company's budget for such year, all in reasonable detail and examined and reported on by a "Big Five" firm of independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);.
(civ) The Company will, promptly upon transmission thereofas soon as practicable and in any event within 30 days, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds correspondence received by the Company and from, or sent by the Company to, its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;external auditors.
(fv) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi each Purchaser copies of any compliance certificates furnished to lenders in respect of indebtedness or lessors of the Company and its Subsidiaries andSubsidiaries.
(vi) The Company will prepare an annual capital and operating budget for each calendar year which shall be submitted to and approved by the Board of Directors of the Company not later than December 1 of the immediately preceding calendar year.
(vii) The Company will, as soon as practicable and in any event within 30 days of June 30 and December 31 of each year, provide Purchasers with a management report reviewing the Company's performance with the Company's business plan and expense budget for that period, a discussion of trends in the Company's business and relevant industry developments, and management view concerning the Company's outlook.
(viii) The Company will, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Financial Statements and Other Reports. The Company will deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) The Company will, as soon as practicable and (i) no later than the date on which such financial statements are filed with the SEC but in any event within 60 no later than 45 days after the end of each quarterly period (other than of the last quarterly period) in first three fiscal quarters of each fiscal year, furnish to THLi statements of the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its Subsidiaries as at the end of the first three fiscal quarters of each fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, and a (ii) promptly when available but in any event no later than 45 days after the end of each of the first three fiscal quarters of each fiscal year, the consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal quarter and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal year, all in reasonable detail and certified (in the case of both clauses (i) and (ii) above) by an authorized the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable (i) no later than the date on which such financial statements are filed with the SEC and in any event within 100 no later than 90 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a audited consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, (ii) promptly when available but in any event no later than 90 days after the end of each fiscal year, the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures from for the preceding previous fiscal year, all in reasonable detail and examined certified (in the case of both clauses (i) and reported on (ii) above) by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company and its Subsidiaries as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year and (iii) in the case of both clauses (i) and (ii) above, a report thereon of a firm of independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant which report shall be unqualified as to clause (iii) below the scope of a copy audit or as to the going concern status of the Annual Report on Form 10-K Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be (in either case, taken as a whole), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial condition of the Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year filed in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the Commission shall be deemed to satisfy the requirements of this clause (ii)examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(c) The together with each delivery of financial statements of the Company willand its Subsidiaries pursuant to subdivisions (a) and (b) above, promptly upon transmission a Compliance Certificate of the Company (i) stating that the applicable Responsible Officer does not have knowledge of the existence, as at the date of such Compliance Certificate, of any condition or event that constitutes a Default or Event of Default, or, if any such condition or event exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; (ii) demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the covenants set forth in Section 8.06 and with any specific dollar amounts specified in respect of any restrictions contained in any other provisions of Article VIII (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes); and (iii) setting forth any change in the identity of any of the Subsidiaries of the Company since the Closing Date (or, if applicable, since the date of the most recent Compliance Certificate delivered to Lenders in accordance with this clause (c));
(d) together with each delivery of consolidated financial statements of the Company and its Subsidiaries pursuant to Section 7.01(b) above, a written statement by the independent certified public accountants giving the report thereon stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default under Section 8.06 has come to their attention and, if such a condition or event has come to their attention, specifying the nature thereof, furnish except to each Purchaser the extent that the delivery of such statement would be prohibited by professional auditing standards applicable to such matters;
(e) promptly after the transmission thereof by the Company or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K, 10-Q, or 8-K and any effective registration statements (and, upon the effectiveness thereof, any material amendments thereto) filed with the SEC (but not any exhibits to any such registration statement or amendment (except as provided below) or any registration statement on Form S-8), and copies of all such financial statements, proxy statements, notices and reports that the Company or any of its Subsidiaries actually sends to the holders of any publicly-issued securities of the Company or any of its Subsidiaries in their capacity as it shall send such holders (in each case to its stockholders the extent not theretofore delivered to Lenders pursuant to this Agreement and copies of all such registration statements (without exhibitsin each case including, to the extent requested by Administrative Agent, any schedules and exhibits thereto), other than registration statements relating in each case as so transmitted to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce PlanSEC;
(f) The promptly upon any Responsible Officer of the Company will promptly furnish to THLi copies obtaining actual knowledge of any reports furnished condition or event that constitutes a Default or an Event of Default, a written notice specifying the nature and period of existence of such condition or event, and what action the Company has taken, is taking and proposes to GECC pursuant to the Note Agreement; andtake with respect thereto;
(g) The promptly upon any Responsible Officer of the Company will obtaining actual knowledge of (i) the institution of any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, “Proceedings”) not previously disclosed in writing by the Company to Lenders or any material development in any Proceeding that, in any such case, could reasonably be expected to give rise to a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to the Company to enable Lenders and their counsel to evaluate such matters;
(h) promptly furnish upon any Responsible Officer of the Company obtaining knowledge of the occurrence or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof and what action the Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to THLi take with respect thereto; promptly upon receipt thereof, copies of any compliance certificates furnished notice received by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates from the Internal Revenue Service, the Department of Labor or the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event; concurrently with the delivery of such notices to lenders in respect the PBGC, to the extent not otherwise delivered to Administrative Agent under this Agreement, copies of indebtedness all notices delivered to the PBGC pursuant to Sections 3.3, 3.4 and 4.4 of the Settlement Agreement, effective as of May 14, 1997, between the Company and the PBGC; promptly upon execution thereof, copies of all amendments, modifications, waivers or supplements to the PBGC Agreements;
(i) [Reserved];
(j) promptly upon any Responsible Officer of the Company and obtaining knowledge of any one or more of the following environmental matters the existence of which, either individually or when aggregated with all other such matters, would reasonably be expected to result in a Material Adverse Effect, a written notice specifying in reasonable detail the nature thereof:
(1) any pending or threatened Environmental Claim against the Company or any of its Subsidiaries andor any land, with reasonable promptness, furnish to each Purchaser such other financial buildings and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store improvements owned or operated leased by the Company or any of its Subsidiaries (but excluding all operating fixtures and equipment, whether or not incorporated into improvements) (collectively, “Real Estate”);
(2) any condition or occurrence that (x) results in noncompliance by the Company or any of its Subsidiaries with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against the Company or any of its Subsidiaries or any Real Estate;
(3) any condition or occurrence on any Real Estate that could reasonably be anticipated to cause such Real Estate to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Estate under any Environmental Law; or
(4) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Estate;
(k) promptly upon any Responsible Officer of the Company obtaining actual knowledge thereof, written notice of:
(1) any announcement by ▇▇▇▇▇’▇ or S&P of any change in a Debt Rating;
(2) any change in accounting policies or financial reporting practices by the Company or any Subsidiary that has a material impact on the consolidated financial statements of the Company and its Subsidiaries;
(3) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (A) breach or non-performance of, or any default under, a Contractual Obligation of the Company or any Subsidiary; or (B) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; and
(l) with reasonable promptness, such other information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested by the Administrative Agent on its own behalf or on behalf of Required Lenders. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to this Section shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.01(e) (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 Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Company’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: (A) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company 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. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or ▇.▇. ▇▇▇▇▇▇ Securities LLC will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to any Borrower or its securities) (each, a “Public Lender”). Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrowers shall be deemed to have authorized the Administrative Agent, ▇.▇. ▇▇▇▇▇▇ Securities LLC, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective 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 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and ▇.▇. ▇▇▇▇▇▇ Securities LLC shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
Appears in 1 contract
Financial Statements and Other Reports. ChipPAC will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. ChipPAC will deliver to the Administrative Agent (aand the Administrative Agent shall deliver to each Lender):
(i) The Company will, Monthly Financials: as soon as practicable available and in any event within 60 ------------------ thirty (30) days after the end of each quarterly period month, commencing September 30, 1999 (other than but not, in any case, for any month in which a Fiscal Quarter ends), the last quarterly period) in each fiscal year, furnish to THLi consolidated balance sheet of ChipPAC and its Subsidiaries as at the end of such month and the related consolidated statements of consolidated net income income, stockholders' equity and cash flows of ChipPAC for such month and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal yearmonth, all in reasonable detail and certified by an authorized a principal financial officer of ChipPAC that they fairly present, in all material respects, the Companyfinancial condition of ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustmentsadjustments and the absence of footnotes;
(ii) Quarterly Financials: as soon as available and in any event -------------------- within forty-five (45) days after the end of each Fiscal Quarter commencing with the Fiscal Quarter ending September 30, 1999, (a) the consolidated balance sheets of ChipPAC and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income and consolidated statement of cash flows of ChipPAC and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth, in the case of statements of income only, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year (except to the extent such comparative information is not available for the one-year period prior to the Closing Date) and the corresponding figures from the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all prepared in accordance with the GAAP and in reasonable detail and certified by the chief executive officer or chief financial officer of ChipPAC that they fairly present, in all material respects, the financial condition of ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments and the absence of footnotes; and (b) a narrative report;
(iii) Year-End Financials: as soon as available and in any event ------------------- within ninety (90) days after the end of each Fiscal Year, (a) the consolidated balance sheets of ChipPAC and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income and consolidated statement of cash flows of ChipPAC and its Subsidiaries for such Fiscal Year, setting forth, in the case of statements of income only, in comparative form the corresponding figures for the previous Fiscal Year (except to the extent such comparative information is not available for the one-year period prior to the Closing Date) and the corresponding figures from the consolidated plan and financial forecast delivered pursuant to subsection 6.1(xiii) for the Fiscal Year covered by such financial statements, all prepared in accordance with the GAAP and in reasonable detail and certified by the chief executive officer or chief financial officer of ChipPAC that they fairly present, in all material respects, the financial condition of ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated; (b) a narrative report describing the operations of ChipPAC and its Subsidiaries in the form prepared for presentation to senior management for such Fiscal Year; provided, however, that delivery pursuant ChipPAC may -------- ------- deliver to clause (iii) below Administrative Agent in lieu of a copy such narrative report, copies of the Quarterly Report report filed by ChipPAC with the Securities and Exchange Commission on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and K in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end respect of such yearFiscal Year; and (c) in the case of such consolidated financial statements, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by a report thereon of independent certified public accountants of recognized national standing selected by ChipPAC and reasonably satisfactory to the Company; providedAdministrative Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed unqualified as to satisfy the requirements going concern and scope of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plansaudit, and shall state that such consolidated financial statements fairly present, in all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Datematerial respects, the Company will, as soon as practicable, and in any event within 5 days after the end consolidated financial position of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated statements) and that the audit by the Company or any of its Subsidiaries.such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
Appears in 1 contract
Sources: Credit Agreement (Chippac LTD)
Financial Statements and Other Reports. The Company will deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) The Company will, as soon as practicable and (i) no later than the date on which such financial statements are filed with the SEC but in any event within 60 no later than 45 days after the end of each quarterly period (other than of the last quarterly period) in first three fiscal quarters of each fiscal year, furnish to THLi statements of the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its Subsidiaries as at the end of the first three fiscal quarters of each fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, and a (ii) promptly when available but in any event no later than 45 days after the end of each of the first three fiscal quarters of each fiscal year, the consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal quarter and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal year, all in reasonable detail and certified (in the case of both clauses (i) and (ii) above) by an authorized the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable (i) no later than the date on which such financial statements are filed with the SEC and in any event within 100 no later than 90 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a audited consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, (ii) promptly when available but in any event no later than 90 days after the end of each fiscal year, the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures from for the preceding previous fiscal year, all in reasonable detail and examined certified (in the case of both clauses (i) and reported on (ii) above) by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company and its Subsidiaries as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year and (iii) in the case of both clauses (i) and (ii) above, a report thereon of a firm of independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant which report shall be unqualified as to clause (iii) below the scope of a copy audit or as to the going concern status of the Annual Report on Form 10-K Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be (in either case, taken as a whole), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial condition of the Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year filed in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the Commission shall be deemed to satisfy the requirements of this clause (ii)examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(c) The together with each delivery of financial statements of the Company willand its Subsidiaries pursuant to subdivisions (a) and (b) above, promptly upon transmission a Compliance Certificate of the Company (i) stating that the applicable Responsible Officer does not have knowledge of the existence, as at the date of such Compliance Certificate, of any condition or event that constitutes a Default or Event of Default, or, if any such condition or event exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; (ii) demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the covenants set forth in Section 8.06 and with any specific dollar amounts specified in respect of any restrictions contained in any other provisions of Article VIII (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes); and (iii) setting forth any change in the identity of any of the Subsidiaries of the Company since the Effective Date (or, if applicable, since the date of the most recent Compliance Certificate delivered to Lenders in accordance with this clause (c));
(d) together with each delivery of consolidated financial statements of the Company and its Subsidiaries pursuant to Section 7.01(b) above, a written statement by the independent certified public accountants giving the report thereon stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default under Section 8.06 has come to their attention and, if such a condition or event has come to their attention, specifying the nature thereof, furnish except to each Purchaser the extent that the delivery of such statement would be prohibited by professional auditing standards applicable to such matters;
(e) promptly after the transmission thereof by the Company or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K, 10-Q, or 8-K and any effective registration statements (and, upon the effectiveness thereof, any material amendments thereto) filed with the SEC (but not any exhibits to any such registration statement or amendment (except as provided below) or any registration statement on Form S-8), and copies of all such financial statements, proxy statements, notices and reports that the Company or any of its Subsidiaries actually sends to the holders of any publicly-issued securities of the Company or any of its Subsidiaries in their capacity as it shall send such holders (in each case to its stockholders the extent not theretofore delivered to Lenders pursuant to this Agreement and copies of all such registration statements (without exhibitsin each case including, to the extent requested by Administrative Agent, any schedules and exhibits thereto), other than registration statements relating in each case as so transmitted to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce PlanSEC;
(f) The promptly upon any Responsible Officer of the Company will promptly furnish to THLi copies obtaining actual knowledge of any reports furnished condition or event that constitutes a Default or an Event of Default, a written notice specifying the nature and period of existence of such condition or event, and what action the Company has taken, is taking and proposes to GECC pursuant to the Note Agreement; andtake with respect thereto;
(g) The promptly upon any Responsible Officer of the Company will obtaining actual knowledge of (i) the institution of any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, “Proceedings”) not previously disclosed in writing by the Company to Lenders or any material development in any Proceeding that, in any such case, could reasonably be expected to give rise to a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to the Company to enable Lenders and their counsel to evaluate such matters;
(h) promptly furnish upon any Responsible Officer of the Company obtaining knowledge of the occurrence or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof and what action the Company, any of its Subsidiaries or any ERISA Affiliate has taken, is taking or proposes to THLi take with respect thereto; promptly upon receipt thereof, copies of any compliance certificates furnished to lenders in respect notice received by the Company, any of indebtedness its Subsidiaries or any ERISA Affiliate from the IRS, the Department of Labor or the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event;
(i) [Reserved];
(j) promptly upon any Responsible Officer of the Company and obtaining knowledge of any one or more of the following environmental matters the existence of which, either individually or when aggregated with all other such matters, would reasonably be expected to result in a Material Adverse Effect, a written notice specifying in reasonable detail the nature thereof:
(1) any pending or threatened Environmental Claim against the Company or any of its Subsidiaries andor any land, with reasonable promptness, furnish to each Purchaser such other financial buildings and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store improvements owned or operated leased by the Company or any of its Subsidiaries (but excluding all operating fixtures and equipment, whether or not incorporated into improvements) (collectively, “Real Estate”);
(2) any condition or occurrence that (x) results in noncompliance by the Company or any of its Subsidiaries with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against the Company or any of its Subsidiaries or any Real Estate;
(3) any condition or occurrence on any Real Estate that could reasonably be anticipated to cause such Real Estate to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Estate under any Environmental Law; or
(4) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Estate;
(k) promptly upon any Responsible Officer of the Company obtaining actual knowledge thereof, written notice of:
(1) any announcement by Moody’s, S&P or Fitch of any change in a Debt Rating;
(2) any change in accounting policies or financial reporting practices by the Company or any Subsidiary that has a material impact on the consolidated financial statements of the Company and its Subsidiaries;
(3) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (A) breach or non-performance of, or any default under, a Contractual Obligation of the Company or any Subsidiary; or (B) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority;
(l) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in such certification; and
(m) with reasonable promptness, (i) such other information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested by the Administrative Agent on its own behalf or on behalf of Required Lenders and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to this Section shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.01(e) (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 Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Company’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: (A) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company 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. The Borrower hereby acknowledges that (a) the Administrative Agent and/or J.P. Morgan Securities LLC will 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 IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, J.P. Morgan Securities LLC 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 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and J.P. Morgan Securities LLC shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Amphenol Corp /De/)
Financial Statements and Other Reports. (a) The Borrowers will maintain, and cause each of their Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Company willwill deliver (or, in the case of clause (i) below, make certain Officers available) to each Lender and the Agents as soon as practicable and in any event follows:
(i) within 60 30 days after the end of each quarterly period month ending after the Closing Date, the Company will make available to the Lenders, Officers of the Company who have responsibility for, or are knowledgeable with respect to, financial and accounting matters of the Company and its Subsidiaries, to discuss with the Lenders the Company's results of operations and financial condition for each such month based on the most recent financial information reasonably available to such Officers; provided, that the -------- Company will not be required to comply with this clause (other i) more than once during each such 30 day period;
(ii) as soon as available and in any event within 45 days after the last quarterly period) in end of each of the first three fiscal quarters of each fiscal year, furnish to THLi statements of (1) the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheets of the Company and its Subsidiaries as at the end of such fiscal quarter, (2) the related consolidated statements of income, stockholders' equity and cash flows for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodfiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal yearyear and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.1(x), all in reasonable detail and certified by an authorized the chief financial officer or the controller of the CompanyCompany that they fairly present in all material respects the financial condition of the Company and its Subsidiaries at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii3) below of a copy of the Quarterly Report Company's 51 quarterly report on Form 10-Q of the Company for such quarterly period filed period, and (4) only if the Company does not file quarterly reports on Form 10-Q with the Commission shall be deemed to satisfy Commission, a narrative report describing the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity operations of the Company and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter;
(iii) as soon as available, but in any event within ninety 90 days after the end of (i) the fiscal year of the Company ending on December 31, 1998, a copy of the joint balance sheet of the Business and the Company and its consolidated Subsidiaries as at the end of such fiscal year and the related joint statements of income and retained earnings and of cash flows of the Business and the Company and its consolidated Subsidiaries for such year, audited by a firm of independent certified public accountants of nationally recognized standing reasonably acceptable to the Agent, (x) setting forth in comparative form the figures for the Business for the previous year, reported on without a "going concern" or like qualification or exception, or qualification indicating that the scope of the audit was inadequate to permit such independent certified public accountants to certify such financial statements without such qualification and (y) prepared in a manner consistent with the annual audited financial statements of the Business for the fiscal year ended on December 31, 1997 previously delivered to the Agents and the Lenders (giving effect to the Acquisition as if it had occurred on January 1, 1998 and taking into account expense adjustments, as applicable, for selling, general and administrative expenses and for expenses incurred pursuant to the JV Supply and Service Contracts); and (ii) each fiscal year of the Company thereafter, (1) the consolidated balance sheet sheets of the Company and its Subsidiaries as of at the end of such fiscal year, (2) the related consolidated statements of income, stockholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year and the corresponding figures from the preceding consolidated plan and financial forecast for the current fiscal yearyear delivered pursuant to section 5.l(x) for the fiscal year covered by such financial statements, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected certified by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy chief financial officer or the controller of the Annual Report Company that they fairly present in all material respects the financial condition of the Company and its Subsidiaries, at the dates indicated and the results of their operations and their cash flows for the periods indicated, (3) the Company's annual report on Form 10-K of for such year, (4) only if the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and does not file annual reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file on Form 10-K with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of a narrative report describing the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness operations of the Company and its Subsidiaries and(in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in annual reports on Form 10-K) prepared for such fiscal year, with reasonable promptnessand (5) in the case of such consolidated financial statements, furnish a report thereon of independent certified public accountants of recognized national standing, which report shall be unqualified as to each Purchaser scope of audit, shall express no doubts about the ability of the Company and its Subsidiaries to continue as a going concern, and shall state that such other consolidated financial and other data statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably requestfinancial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iv) together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, (a) an Officers' Certificate of the Company stating that the signers have reviewed the terms of this Agreement and the Bridge Notes and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as of the date of the Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto and (b) a Compliance Certificate demonstrating in reasonable detail compliance (as determined in accordance with GAAP) during and at the end of such accounting periods with the restrictions contained in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.7, 6.8, 6.9 and 6.13;
(v) together with each delivery of consolidated financial statements pursuant to Section 5.1(iii) above, a written statement by the independent certified public accountants giving the report thereon (a) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default or Potential Event of Default that relates to accounting matters has come to their attention and, if any such condition or event has come to their attention, specifying the nature and period of existence thereof; provided that such accountants shall not be -------- liable by reason of any failure to obtain knowledge of any such Event of Default or Potential Event of Default that would not be disclosed in the course of their audit examination, and (b) stating that based on their audit examination nothing has come to their attention that causes them to believe that the information contained in the Compliance Certificates delivered therewith is not correct;
(vi) promptly upon receipt thereof, copies of all reports in final form (other than reports of a routine or ministerial nature which are not material) submitted to the Company by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of the Company and its Subsidiaries made by such accountants, including, but not limited towithout limitation, operating any comment letter submitted by such accountants to management in connection with their annual audit;
(vii) promptly upon the sending or filing thereof, copies of (a) all financial information for each retail store owned statements, reports, notices and proxy statements sent or operated made available generally by the Company to its public security holders or by any Subsidiary of the Company to its public security holders other than the Company or another Subsidiary of the Company, (b) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Company or any of its Subsidiaries with any securities exchange or with the Commission or any governmental authority (other than reports of a routine or ministerial nature which are not material), and (c) all press releases and other statements made available generally by the Company or any of its Subsidiaries to the public concerning material developments in the business of the Company or any of its Subsidiaries;
(viii) promptly upon any executive officer of either of the Borrowers obtaining knowledge (a) of any condition or event which constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender or Agent has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement, (b) that any Person has given any notice to either of the Borrowers or any Subsidiary of either of the Borrowers or taken any other action with respect to a claimed default or event or condition which might result in an Event of Default referred to in Section 7.2, (c) of any condition or event which would be required to be disclosed in a current report filed with the Commission on Form 8-K whether or not the Company is required to file such reports under the Exchange Act, or (d) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officers' Certificate specifying the nature and period of existence of any such condition or event, or specifying the notice given or action taken by such Person and the nature of such claimed default, Event of Default, Potential Event of Default, event or condition, and what action the Borrowers have taken, are taking and propose to take with respect thereto;
(ix) promptly upon any executive officer of either of the Borrowers obtaining knowledge of (X) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), Environmental Claim, governmental investigation or arbitration against or affecting either of the Borrowers or any of their Subsidiaries or any property of either of the Borrowers or any of their Subsidiaries not previously disclosed in writing by either of the Borrowers to the Lenders or (Y) any material development in any proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the JV Transactions; written notice thereof together with such other information as may be reasonably available to either of the Borrowers or any of their Subsidiaries to enable the Lenders and their counsel to evaluate such matters;
(x) as soon as practicable but in any event no later than 45 days following the first day of each fiscal year a forecast for each of the next succeeding twelve months of the consolidated balance sheet and the consolidated statements of income, cash flow and cash position of the Company and its Subsidiaries, together with an outline of the major assumptions upon which the forecast is based. Together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, the Company shall deliver a comparison of the current year to date financial results against the budget required to be submitted pursuant to this Section 5.1(x);
(xi) in writing, promptly upon any Officer of either of the Borrowers obtaining knowledge that the Company or any of its Subsidiaries has received notice or otherwise learned of any Environmental Claim or other claim, demand, action, event, condition, report or investigation indicating any potential or actual liability arising in connection with (x) the non-compliance with or violation of the requirements of any Environmental Law which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (y) the release, threatened release or presence of any Hazardous Material in the environment which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or which either of the Borrowers or any of their Subsidiaries would have a duty to report to a Tribunal under an Environmental Law, or (z) the existence of any Environmental Lien on any properties or assets of either of the Borrowers or any of their Subsidiaries;
(xii) promptly after the availability thereof, copies of all material amendments to the certificate of incorporation or by-laws of the Company or any of its Subsidiaries;
(xiii) promptly upon any Person becoming a Subsidiary of the Company, a written notice setting forth with respect to such Person (a) the date on which such Person became a Subsidiary of the Company and (b) the ownership structure and jurisdiction of incorporation of such Person; and
(xiv) with reasonable promptness such other information and data with respect to the Company or any of its Subsidiaries or any of their respective properties, businesses or assets as from time to time may be reasonably requested by any Lender; provided that no information or data -------- shall be required to be delivered hereunder or under any other provision of this Agreement if it would violate any applicable attorney-client or accountant-client privilege.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Advanced Glassfiber Yarus LLC)
Financial Statements and Other Reports. Company will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver to Administrative Agent (awith copies for each Lender, which copies shall be promptly distributed to Lenders by Administrative Agent): (i) The Company will, Monthly Financials: as soon as practicable available and in any event within 60 35 ------------------- days after the end of each quarterly period (other than February, March, May, June, August, September, November and December ending after the last quarterly period) in each fiscal yearEffective Date, furnish to THLi the consolidated statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries and separate statements of income of each Gaming Facility of Company and its Subsidiaries, in each case for such month and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearmonth, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal Financial Plan for the current Fiscal Year, to the extent prepared on a monthly basis, all in reasonable detail, subject to changes resulting from audit and normal year-end adjustments; (ii) Quarterly Financials: as soon as available and in any event within (x) -------------------- 50 days after the end of each Fiscal Quarter (other than each fourth Fiscal Quarter), or (y) 95 days after the end of each fourth Fiscal Quarter, (a) the consolidated and consolidating balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail and examined certified by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and reported on its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, and (b) a narrative report describing the operations of Company and its Subsidiaries in the form prepared for presentation to senior management for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter; (iii) Year-End Financials: as soon as available and in any event within 95 ------------------- days after the end of each Fiscal Year, (a) the consolidated and consolidating balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, all in reasonable detail and certified by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, (b) a narrative report describing the operations of Company and its Subsidiaries in the form prepared for presentation to senior management for such Fiscal Year, and (c) in the case of such consolidated financial statements, a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by the Company; providedCompany and satisfactory to Administrative Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed to satisfy unqualified, shall express no doubts about the requirements ability of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries to continue as a going concern, and (ii) shall state that such consolidated financial statements fairly present, in all material respects, the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies consolidated financial position of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated statements) and that the examination by the Company or any of its Subsidiaries.such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; (iv)
Appears in 1 contract
Financial Statements and Other Reports. The Borrower will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Borrower will deliver to each Lender and the Agent:
(ai) The Company will, as soon as practicable available and in any event within 60 30 days after the end of each quarterly period month ending after the Closing Date, (other than 1) the last quarterly periodconsolidated balance sheets of the Borrower and its Subsidiaries as at the end of such month, (2) in each fiscal year, furnish to THLi the related summary statements of consolidated net income and cash flows and a statement of changes in consolidated income, stockholders' equity of the Company and its Subsidiaries cash flows, in each case for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding period or date in periods of the preceding previous fiscal yearyear and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.l(x), all in reasonable detail and certified by an authorized the chief financial officer or the controller of the CompanyBorrower that they fairly present in all material respects the financial condition of such entities as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant and (3) a conference call with senior management to clause (iii) below of a copy discuss the operations of the Quarterly Report on Form 10-Q Borrower and its Subsidiaries for such monthly period and for the period from the beginning of the Company for then current fiscal year to the end of such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)monthly period;
(bii) The Company will, as soon as practicable available and in any event within 100 45 days after the end of each of the first three fiscal quarters of each fiscal year, furnish to THLi statements of (1) the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheets of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company Borrower and its Subsidiaries as of at the end of such yearfiscal quarter, (2) the related consolidated statements of income, stockholders' equity and cash flows for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the preceding consolidated plan and financial forecast for the current fiscal yearyear delivered pursuant to Section 5.1(x), all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected certified by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy chief financial officer or the controller of the Annual Report Borrower that they fairly present in all material respects the financial condition of the Borrower and its Subsidiaries at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, (3) the Borrower's quarterly report on Form 10-K Q for such quarterly period, and (4) only if the Borrower does not file quarterly reports on Form 10-Q with the Commission, a narrative report describing the operations of the Company Borrower and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such fiscal quarter and for the period from the beginning of the then current fiscal year filed with to the Commission shall be deemed to satisfy the requirements end of this clause (ii)such fiscal quarter;
(ciii) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, available and in any event within 5 90 days after the end of each monthfiscal year, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i1) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness consolidated balance sheets of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company Borrower and its Subsidiaries as at the end of such Purchaser may reasonably requestfiscal year, (2) the related consolidated statements of income, stockholders' equity and cash flows for such fiscal year, setting forth in each case in 50 comparative form the corresponding figures for the previous fiscal year and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to section 5.1(x) for the fiscal year covered by such financial statements, all in reasonable detail and certified by the chief financial officer or the controller of the Borrower that they fairly present in all material respects the financial condition of the Borrower and its Subsidiaries, at the dates indicated and the results of their operations and their cash flows for the periods indicated, (3) the Borrower's annual report on Form 10-K for such year, (4) only if the Borrower does not file annual reports on Form 10-K with the Commission, a narrative report describing the operations of the Borrower and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in annual reports on Form 10-K) prepared for such fiscal year, and (5) in the case of such consolidated financial statements, a report thereon of independent certified public accountants of recognized national standing, which report shall be unqualified as to scope of audit, shall express no doubts about the ability of the Borrower and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present in all material respects the consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iv) together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, (a) an Officers' Certificate of the Borrower stating that the signers have reviewed the terms of this Agreement and the Bridge Notes and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of the Borrower and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as of the date of the Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Borrower has taken, is taking and proposes to take with respect thereto and (b) a Compliance Certificate demonstrating in reasonable detail compliance (as determined in accordance with GAAP) during and at the end of such accounting periods with the restrictions contained in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.7, 6.8, 6.9 and 6.13;
(v) together with each delivery of consolidated financial statements pursuant to Section 5.1(iii) above, a written statement by the independent certified public accountants giving the report thereon (a) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default or Potential Event of Default that relates to accounting matters has come to their attention and, if any such condition or event has come to their attention, specifying the nature and period of existence thereof; provided that such -------- accountants shall not be liable by reason of any failure to obtain knowledge of any such Event of Default or Potential Event of Default that would not be disclosed in the course of their audit examination, and (b) stating that based on their audit examination nothing has come to their attention that causes them to believe that the information contained in the Compliance Certificates delivered therewith is not correct;
(vi) promptly upon receipt thereof, copies of all reports in final form (other than reports of a routine or ministerial nature which are not material) submitted to the Borrower by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of the Borrower and its Subsidiaries made by such accountants, including, but not limited towithout limitation, operating any comment letter submitted by such accountants to management in connection with their annual audit;
(vii) promptly upon the sending or filing thereof, copies of (a) all financial information for each retail store owned statements, reports, notices and proxy statements sent or operated made available generally by the Company Borrower to their public security holders or by any Subsidiary of the Borrower to its public security holders other than the Borrower or another Subsidiary of the Borrower, (b) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Subsidiaries with any securities exchange or with the Commission or any governmental authority (other than reports of a routine or ministerial nature which are not material), and (c) all press releases and other statements made available generally by the Borrower or any of its Subsidiaries to the public concerning material developments in the business of the Borrower or any of its Subsidiaries;
(viii) promptly upon any executive officer of the Borrower obtaining knowledge (a) of any condition or event which constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender or Agent has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement, (b) that any Person has given any notice to the Borrower or any Subsidiary of the Borrower or taken any other action with respect to a claimed default or event or condition which might result in an Event of Default referred to in Section 7.2, (c) of any condition or event which would be required to be disclosed in a current report filed with the Commission on Form 8-K whether or not the Borrower is required to file such reports under the Exchange Act, or (d) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officers' Certificate specifying the nature and period of existence of any such condition or event, or specifying the notice given or action taken by such Person and the nature of such claimed default, Event of Default, Potential Event of Default, event or condition, and what action the Borrower has taken, is taking and proposes to take with respect thereto;
(ix) promptly upon any executive officer of the Borrower obtaining knowledge of (X) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), Environmental Claim, governmental investigation or arbitration against or affecting the Borrower or any of its Subsidiaries or any property of the Borrower or any of its Subsidiaries not previously disclosed in writing by the Borrower to the Lenders or (Y) any material development in any proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the JV Transactions; written notice thereof together with such other information as may be reasonably available to the Borrower or any of its Subsidiaries to enable the Lenders and their counsel to evaluate such matters;
(x) as soon as practicable but in any event no later than 45 days following the first day of each fiscal year a forecast for each of the next succeeding twelve months of the consolidated balance sheet and the consolidated statements of income, cash flow and cash position of the Borrower and its Subsidiaries, together with an outline of the major assumptions upon which the forecast is based. Together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, the Borrower shall deliver a comparison of the current year to date financial results against the budget required to be submitted pursuant to this Section 5.1(x);
(xi) in writing, promptly upon any Officer of the Borrower obtaining knowledge that the Borrower or any of its Subsidiaries has received notice or otherwise learned of any Environmental Claim or other claim, demand, action, event, condition, report or investigation indicating any potential or actual liability arising in connection with (x) the non-compliance with or violation of the requirements of any Environmental Law which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (y) the release, threatened release or presence of any Hazardous Material in the environment which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or which the Borrower or any of its Subsidiaries would have a duty to report to a Tribunal under an Environmental Law, or (z) the existence of any Environmental Lien on any properties or assets of the Borrower or any of its Subsidiaries;
(xii) promptly after the availability thereof, copies of all material amendments to the certificate of incorporation or by-laws of the Borrower or any of its Subsidiaries;
(xiii) promptly upon any Person becoming a Subsidiary of the Borrower, a written notice setting forth with respect to such Person (a) the date on which such Person became a Subsidiary of the Borrower and (b) the ownership structure and jurisdiction of incorporation of such Subsidiary; and (xiv) with reasonable promptness such other information and data with respect to the Borrower or any of its Subsidiaries or any of their respective properties, businesses or assets as from time to time may be reasonably requested by any Lender; provided that no information or data -------- shall be required to be delivered hereunder or under any other provision of this Agreement if it would violate any applicable attorney-client or accountant-client privilege.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (BGF Industries Inc)
Financial Statements and Other Reports. ChipPAC will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. ChipPAC will deliver to the Administrative Agent (aand the Administrative Agent shall deliver to each Lender):
(i) The Company will, Monthly Financials: as soon as practicable available and in any event ------------------ within 60 thirty (30) days after the end of each quarterly period month, commencing July 31, 2000 (other than but not, in any case, for any month in which a Fiscal Quarter ends), the last quarterly period) in each fiscal year, furnish to THLi consolidated balance sheet of ChipPAC and its Subsidiaries as at the end of such month and the related consolidated statements of consolidated net income income, stockholders' equity and cash flows of ChipPAC for such month and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal yearmonth, all in reasonable detail and certified by an authorized a principal financial officer of ChipPAC that they fairly present, in all material respects, the Companyfinancial condition of ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year- end adjustments and the absence of footnotes;
(ii) Quarterly Financials: as soon as available and in any event -------------------- within forty-five (45) days after the end of each Fiscal Quarter commencing with the Fiscal Quarter ending June 30, 2000, (a) the consolidated balance sheets of ChipPAC and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income and consolidated statement of cash flows of ChipPAC and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth, in the case of statements of income only, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year (except to the extent such comparative information is not available for the one-year period prior to the Closing Date) and the corresponding figures from the 116 consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all prepared in accordance with the GAAP and in reasonable detail and certified by the chief executive officer or chief financial officer of ChipPAC that they fairly present, in all material respects, the financial condition of ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustmentsadjustments and the absence of footnotes; and (b) a narrative report;
(iii) Year-End Financials: as soon as available and in any event ------------------- within ninety (90) days after the end of each Fiscal Year, (a) the consolidated balance sheets of ChipPAC and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income and consolidated statement of cash flows of ChipPAC and its Subsidiaries for such Fiscal Year, setting forth, in the case of statements of income only, in comparative form the corresponding figures for the previous Fiscal Year (except to the extent such comparative information is not available for the one-year period prior to the Closing Date) and the corresponding figures from the consolidated plan and financial forecast delivered pursuant to subsection 6.1(xiii) for the Fiscal Year covered by such financial statements, all prepared in accordance with the GAAP and in reasonable detail and certified by the chief executive officer or chief financial officer of ChipPAC that they fairly present, in all material respects, the financial condition of ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated; (b) a narrative report describing the operations of ChipPAC and its Subsidiaries in the form prepared for presentation to senior management for such Fiscal Year; provided, however, that delivery pursuant ChipPAC may -------- ------- deliver to clause (iii) below Administrative Agent in lieu of a copy such narrative report, copies of the Quarterly Report report filed by ChipPAC with the Securities and Exchange Commission on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and K in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end respect of such yearFiscal Year; and (c) in the case of such consolidated financial statements, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by a report thereon of independent certified public accountants of recognized national standing selected by ChipPAC and reasonably satisfactory to the Company; providedAdministrative Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed unqualified as to satisfy the requirements going concern and scope of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plansaudit, and shall state that such consolidated financial statements fairly present, in all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Datematerial respects, the Company will, as soon as practicable, and in any event within 5 days after the end consolidated financial position of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company ChipPAC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated statements) and that the audit by the Company or any of its Subsidiaries.such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; 117
Appears in 1 contract
Sources: Credit Agreement (Chippac Inc)
Financial Statements and Other Reports. Each Borrower will maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in accordance with GAAP and to provide the information required to be delivered to Lenders hereunder, and Atlantic will deliver to Agent, and, in the case of the deliveries required by paragraphs (a) The Company willthrough (f) and (l) through (s), each Lender:
(a) as soon as practicable and in any event within 60 thirty (30) days after the end of each quarterly period (month other than the last quarterly periodmonth of a fiscal quarter, and within forty-five (45) in days after the end of each month that is the last month of a fiscal yearquarter (including the last month of Borrowers' Fiscal Year), furnish to THLi statements a consolidated and consolidating balance sheet of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company Atlantic and its Consolidated Subsidiaries for the period from the beginning of the then current fiscal year to as at the end of such quarterly periodmonth and the related consolidated statements of operations and cash flows for such month, and a consolidated balance sheet for the portion of the Company and its Subsidiaries as of Fiscal Year ended at the end of such quarterly period, month setting forth in each case in comparative form the figures for the corresponding period or date periods of the previous Fiscal Year and the figures for such month and for such portion of the Fiscal Year ended at the end of such month set forth in the preceding fiscal yearannual operating and capital expenditure budgets and cash flow forecast delivered pursuant to Section 4.1(l), all in reasonable detail and certified by an authorized a Responsible Officer of Borrower Representative as fairly presenting in all material respects the financial officer condition and results of operations of Atlantic and its Consolidated Subsidiaries and as having been prepared in accordance with GAAP applied on a basis consistent with the Companyaudited financial statements of Atlantic, subject to changes resulting from audit and other normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below adjustments and the absence of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)footnote disclosures;
(b) The Company will, as soon as practicable available and in any event within 100 ninety (90) days after the end of each fiscal yearFiscal Year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated and consolidating balance sheet of the Company Atlantic and its Consolidated Subsidiaries as of the end of such yearFiscal Year and the related consolidated and consolidating statements of operations, stockholders' equity (or the comparable item, if any Borrower is not a corporation) and cash flows for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and, only to the extent that such financial statements reflect material changes from the preceding fiscal yearmonthly financial statements delivered pursuant to Section 4.1(a) for the last month of such Fiscal Year, all the figures for such Fiscal Year set forth in reasonable detail the annual operating and examined capital expenditure budgets and reported on cash flow forecast delivered pursuant to Section 4.1(l), certified by a Responsible Officer of Borrower Representative and (solely with respect to such consolidated statements) without qualification by KPMG LLP or other independent public accountants reasonably acceptable to Agent of nationally recognized national standing selected by the Company; provided, however, that delivery pursuant (except for qualifications relating to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for changes in applicable accounting principles with which such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (iiaccountants concur);
(c) The Company will, promptly upon transmission thereof, furnish together with each delivery of financial statements pursuant to each Purchaser copies of all such financial statements, proxy statements, notices Sections 4.1(a) and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits4.1(b), other than registration statements relating to employee benefit or dividend reinvestment plansa Compliance Certificate, and all such regular and periodic reports as it shall file together with the Commissioneach delivery of financial statements pursuant to Section 4.1(b), an Excess Cash Flow Certificate;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; andintentionally omitted;
(e) Until the two-year anniversary promptly upon receipt thereof, copies of all reports submitted to any Credit Party by independent public accountants in connection with each annual, interim or special audit of the First Closing Datefinancial statements of any Credit Party made by such accountants, including the Company willcomment letter submitted by such accountants to management in connection with their annual audit;
(f) promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Atlantic to its security holders, (ii) all regular and periodic reports and all registration statements and prospectuses filed by any Credit Party with any securities exchange or with the Securities and Exchange Commission or any successor and (iii) all press releases and other statements made available generally by any Credit Party concerning material developments in the business of any Credit Party;
(g) promptly upon any Responsible Officer or Other Officer of any Credit Party obtaining knowledge (i) of the existence of any Event of Default or Default, or becoming aware that the holder of any Debt of any Credit Party in excess of $100,000 has given any notice or taken any other action with respect to a claimed default thereunder, (ii) of any change in any Credit Party's certified accountant or any resignation, or decision not to stand for re-election, by any member of any Credit Party's board of directors (or comparable body), (iii) that any Person has given any notice to any Credit Party or taken any other action with respect to a claimed default under any material agreement or instrument (other than the Financing Documents or any agreement evidencing Debt of such Credit Party) to which any Credit Party is a party or by which any of its assets is bound or (iv) of the institution of any litigation or arbitration involving an alleged liability of any Credit Party equal to or greater than $100,000 or any adverse determination in any litigation or arbitration involving a potential liability of any Credit Party equal to or greater than $100,000, a certificate of a Responsible Officer of Borrower Representative 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 (including any Event of Default or Default), event or condition, and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(h) promptly upon any Responsible Officer or Other Officer of any Credit Party obtaining knowledge of (i) the institution of any steps by any member of the Controlled Group or any other Person to terminate any Pension Plan, (ii) the failure of any member of the Controlled Group to make a required contribution to any Pension Plan (if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA) or to any Multiemployer Pension Plan, (iii) the taking of any action with respect to a Pension Plan which could result in the requirement that any Borrower or any Subsidiary furnish a bond or other security to the PBGC or such Pension Plan, (iv) the occurrence of any event with respect to any Pension Plan or Multiemployer Pension Plan which could result in the incurrence by any member of the Controlled Group of any material liability, fine or penalty (including any claim or demand for withdrawal liability or partial withdrawal from any Multiemployer Pension Plan), (v) any material increase in the contingent liability of any Borrower or any Subsidiary with respect to any post-retirement welfare plan benefit or (vi) any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become insolvent, a certificate of a Responsible Officer of such Credit Party 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 what action the applicable Credit Party has taken, is taking or proposed to take with respect thereto;
(i) promptly upon any Responsible Officer or Other Officer of any Credit Party obtaining knowledge of any complaint, order, citation, notice or other written communication from any Person delivered to any Credit Party with respect to, or if any Responsible Officer or Other Officer of any Credit Party becomes aware of (x) the existence or alleged existence of a violation of any Environmental Law or the incurrence of any liability, obligation, loss, damage, fine, penalty or sanction or the requirement to commence any remedial action resulting from or in connection with any air emission, water discharge, noise emission, Hazardous Material or any other environmental, health or safety matter at, upon, under or within any of the properties now or previously owned, leased or operated by any Credit Party, or due to the operations or activities of any Credit Party or any other Person on or in connection with any such property or any part thereof, in any case that either involves claims or liabilities in excess of $100,000 or could reasonably be expected to have a Material Adverse Effect, or (y) any release on any of such properties of Hazardous Materials in a quantity that is reportable under any applicable Environmental Law and that either involves claims or liabilities in excess of $100,000 or could reasonably be expected to have a Material Adverse Effect, a certificate of a Responsible Officer of such Credit Party 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 what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(j) promptly upon any Responsible Officer or Other Officer of any Credit Party obtaining knowledge that any Credit Party has either (x) registered or applied to register any Intellectual Property with the U.S. government, any foreign government or any agency or department thereof, or (y) acquired any interest in Real Property (including leasehold interests in Real Property), a certificate of a Responsible Officer of such Credit Party describing such Intellectual Property and/or such real property in such detail as Agent shall reasonably require;
(k) copies of any reports or notices related to any taxes in excess of $50,000 and any other reports or notices received by any Credit Party from, or filed by any Credit Party with, any Federal, state or local governmental agency or body involving claims or liabilities in excess of $50,000 or which could reasonably be expected to have a Material Adverse Effect;
(l) within fifteen (15) days prior to the conclusion of each Fiscal Year, Atlantic's annual consolidated and consolidating operating plans, operating and capital expenditure budgets, and financial forecasts, including cash flow projections covering proposed fundings, repayments, additional advances, investments and other cash receipts and disbursements, each for the following three (3) Fiscal Years presented on a monthly basis for the next Fiscal Year and annually for the two (2) subsequent Fiscal Years, all of which shall be in a format reasonably consistent with projections, budgets and forecasts theretofore provided to Lenders, and promptly following the preparation thereof, updates to any of the foregoing from time to time prepared by management of Atlantic;
(m) as soon as practicable, available and in any event within 5 days no later than noon (Chicago Time) on a day each week as designated from time to time by Agent, and from time to time upon the request of Agent, in the exercise of its reasonable credit judgment, (which request may be made as frequently as daily), a Borrowing Base Certificate as of the last day of the week most recently ended (or, in the case of Borrowing Base Certificates requested more frequently than weekly, as of the third preceding Business Day);
(n) intentionally omitted;
(o) as soon as available after the end of each monthmonth (but in any event within twenty-five (25) Business Days after the end thereof), furnish to THLi and GECC detailed reports, and any other information THLi and GECC on a monthly basis or more frequently as Agent may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and perpetual Inventory reports (provided, that perpetual Inventory reports will not be required with respect to Potter for periods ending prior to January 31, 2003), (ii) Inventory reports by location and category (and including the Company's compliance with the Retail Plan amounts of Inventory and the E-Commerce Planvalue thereof at, any leased locations and at premises of warehouses, consignees, processors or other third parties), (iii) agings of Accounts, (iv) agings of accounts payable (and including information indicating the amounts owing to owners and lessors of leased premises, warehouses, consignees, processors and other third parties from time to time in possession of any Collateral) and (v) such reconciliation reports from time to time reasonably requested by Agent with respect to the Borrowing Base Certificate most recently delivered to Agent, the financial statements of each Borrower delivered to Agent, each Borrower's general ledger and/or the reports required pursuant to this paragraph, each in form and substance, and with such supporting detail and documentation, as may be reasonably requested by Agent;
(fp) The Company will promptly furnish to THLi with reasonable promptness following Agent's reasonable written request, (i) copies of customer statements and credit memos, remittance advices and reports and copies of deposit slips and bank statements, (ii) copies of shipping and delivery documents, and (iii) copies of purchase orders, invoices and delivery documents for Inventory and Equipment acquired by any reports furnished Credit Party;
(q) within two (2) Business Days after any request therefor, such additional information in such detail concerning the amount, composition and manner of calculation of the Borrowing Base as Agent or any Lender may reasonably request;
(r) upon the request of Agent, in the exercise of its reasonable credit judgment, which may be made not more than four times each year prior to GECC pursuant an Event of Default and at any time while and so long as an Event of Default shall be continuing, a report of an independent collateral auditor satisfactory to Agent (which may be, or be affiliated with, a Lender) with respect to the Note Agreementcomponents of the Borrowing Base, which report shall indicate whether or not the information set forth in the Borrowing Base Certificate most recently delivered is accurate and complete in all material respects based upon a review by such auditors of the Accounts (including verification with respect to the amount, aging, identity and credit of the respective Account Debtors and the billing practices of each Borrower) and Inventory (including verification as to the value, location and respective types);
(s) from time to time, if Agent or any Lender determines that obtaining appraisals is necessary in order for Agent or such Lender to comply with applicable laws or regulations, appraisal reports in form and substance and from appraisers reasonably satisfactory to Agent stating the then current fair market values of all or any portion of the real estate owned by any Borrower or any Subsidiaries. In addition to the foregoing, from time to time, but in the absence of a Default or Event of Default not more than once during each calendar year, Agent in the exercise of its reasonable credit judgment may require Borrowers to obtain and deliver to Agent appraisal reports in form and substance and from appraisers satisfactory to Agent stating the then current market values of all or any portion of the real estate and personal property owned by any Borrower or any Subsidiaries; and
(gt) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial information and other data of the Company and its Subsidiaries with respect to any Credit Party as such Purchaser from time to time may be reasonably request, including, but not limited to, operating financial information for each retail store owned or operated requested by the Company Agent or any of its SubsidiariesLender.
Appears in 1 contract
Financial Statements and Other Reports. (ai) The Company will, as soon as practicable and in any event within 60 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi the Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet sheets of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery -------- ------- pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(bii) The Company it will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi the Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet sheets of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery -------- ------- pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(ciii) The Company it will, promptly upon transmission thereof, furnish to each the Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(eiv) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, it will promptly furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to the Purchaser (a) copies of (i) the use any compliance certificates furnished to lenders in respect of Proceeds by Indebtedness of the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies any notices of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to default from lenders in respect of indebtedness any such Indebtedness and (b) notice of (i) the commencement of any Litigation which, if determined adversely to the Company, would have a Material Adverse Effect, (ii) the issuance by any governmental authority of any injunction, order, restraint or other decision which has resulted in, or which is likely, in the reasonable judgment of the Company and its Subsidiaries andor any such Subsidiary, with reasonable promptness, furnish to each Purchaser such other financial and other data have a Material Adverse Effect or (iii) any development in the business or affairs of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiariesthe Subsidiaries which has resulted in, or which is likely, in the reasonable judgment of the Company or any such Subsidiary, to result in a Material Adverse Effect. Together with each delivery of financial statements required by clause (ii) above, the Company will deliver to the Purchaser a certificate of the Chief Financial Officer, Treasurer or other financial officer of the Company regarding compliance by the Company with the covenants set forth in Sections 6.1 and 6.4.
Appears in 1 contract
Financial Statements and Other Reports. The Guarantor will deliver or cause to be delivered to the Agent (awith sufficient copies for each of the Participants, other than the Tranche T Participant) The Company will, as soon as practicable and in any event to the Lessor:
(A) within 60 days ten (10) Business Days after such statement is filed with the Commission after the end of each quarterly period (other than fiscal year of the last quarterly period) in each fiscal yearGuarantor, furnish to THLi statements of consolidated net income and cash flows and a an audited statement of changes in consolidated stockholders' equity financial position of the Company Guarantor and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for fiscal year and the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi related consolidated statements of consolidated net income income, shareholder's equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal year, setting forth in each case in comparative form the corresponding figures from for the preceding previous fiscal year, all in reasonable detail and examined and reported on accompanied by the unqualified opinion of KPMG Peat Marwick or other independent public accountants of nationally recognized national standing selected by stating that such consolidated financial statements present fairly the Company; provided, however, that delivery pursuant to clause (iii) below of a copy financial position of the Annual Report Guarantor and its Consolidated Subsidiaries for the periods indicated, in conformity with GAAP, and applied on Form 10-K a basis consistent with prior years; together with a Responsible Officer's Certificate containing a computation of, and showing compliance with, each of the Company for financial ratios and restrictions contained in SECTION 10.2 and to the effect that the Responsible Officer executing such fiscal year filed with certificate is not aware of any Event of Default or Default that has occurred and is continuing, or if such officer is aware of any such Event of Default or Default, describing it and the Commission shall be deemed steps, if any, being taken to satisfy the requirements of this clause (ii)cure it;
(cB) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, available and in any event within 5 fifty (50) days after the end of each monthof the first three quarters of each fiscal year of the Guarantor, furnish to THLi a consolidated statement of financial position of the Guarantor as of the end of such quarter and GECC detailed reportsthe related consolidated statements of income, shareholder's equity and cash flows for such quarter and for the portion of the Guarantor's fiscal year ended at the end of such quarter, together with a Responsible Officer's Certificate containing a computation of, and showing compliance with, each of the financial ratios and restrictions contained in SECTION 10.2 and that no Default or Event of Default has occurred or is continuing or, if any other information THLi Default or Event of Default has occurred and GECC may reasonably requestis continuing, relating describing it and the steps, if any,being taken to cure it;
(C) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of the Guarantor and its Subsidiaries delivered pursuant to SECTIONS 10.1(a)(iv) or 10.1(a)(v)(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such Sections had no such change in accounting principles and policies been made, then together with the first delivery of such financial statements after such change a statement of reconciliation for all such prior financial statements in form and substance satisfactory to the Required Participants;
(D) promptly upon their becoming available, copies of (i) the use of Proceeds all financial statements sent or made available generally by the Company and Guarantor to its Subsidiaries Security holders acting in such capacity or by any Subsidiary of the Guarantor to its Security holders other than the Guarantor or another Subsidiary of the Guarantor and (ii) all regular and periodic reports and all registration statements and prospectuses, if any, filed by the Company's compliance Guarantor or any of its Subsidiaries with any securities exchange or with the Retail Plan Securities and the E-Commerce PlanExchange Commission or any governmental or private regulatory authority;
(fE) The Company will promptly furnish upon any Responsible Officer of the Guarantor obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to THLi the Guarantor by the Lessor, the Agent or any Participant with respect thereto; (ii) that any Person has given any notice to the Guarantor or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 11.1(c) of the Guarantee; (iii) of any condition or event of a type required to be disclosed in a current report on Form 8-K of the Securities and Exchange Commission (excluding Item 3 as in effect on the date hereof) which condition or event could reasonably be expected to have a Material Adverse Effect; or (iv) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of a Responsible Officer specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action the Guarantor has taken, is taking and proposes to take with respect thereto;
(F) promptly upon any Responsible Officer of the Guarantor obtaining knowledge of the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by the Guarantor to the Lessor, the Agent and the Participants either (i) involving potential monetary damages payable by Guarantor or its Subsidiaries of $5,000,000 or more (alone or in the aggregate), or (ii) seeking to enjoin or otherwise prevent the consummation or performance of, or to recover any damages or obtain relief as a result of, the transactions contemplated by the Operative Documents, written notice thereof together with such other information as may be reasonably available to the Guarantor to enable the Lessor, the Agent and the Participants and their counsel to evaluate such matters including information from time to time of any material development in any such Adverse Proceeding;
(i) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action the Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) upon request of the Agent and with reasonable promptness, copies of such other documents or governmental reports or filings relating to any reports furnished to GECC pursuant to Employee Benefit Plan as the Note AgreementAgent shall reasonably request;
(H) promptly, written notice of any change in either ▇▇▇▇▇'▇ or S&P's rating for Guarantor's long term Indebtedness, if applicable; and
(gI) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company Guarantor and its Subsidiaries andshall at all times keep proper books of record and account in which full, true and correct entries will be made of their transactions in accordance with GAAP;
(J) with reasonable promptness, furnish to each Purchaser such other financial instruments, agreements, certificates, opinions, statements, documents and other information and data with respect to the operations or condition (financial or otherwise) of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company Guarantor or any of its SubsidiariesSubsidiaries and compliance by Guarantor with the terms of this Agreement and the other Operative Documents as from time to time may be reasonably requested by the Lessor, the Agent or any Participant; and
(K) Notwithstanding the foregoing, the requirement for delivery of financial statements under 10.1(a)(iv) may be satisfied by delivery of a copy of Forms 10-K or 10-Q as the case may be as filed by the Guarantor with the Commission for the most recent Fiscal Year or Fiscal Quarter then ended. The Guarantor may remit its financial statements via electronic format through delivery by e-mail or otherwise.
Appears in 1 contract
Sources: Participation Agreement (Triquint Semiconductor Inc)
Financial Statements and Other Reports. (a) The Company willwill maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. The Company will deliver to the Administrative Agent (which will promptly forward copies of the same to each Lender):
(i) Monthly Financials: as soon as practicable available and in any event within 60 thirty (30) days after each calendar month-end (other than the third month of any Fiscal Quarter) commencing with the calendar month ending March 31, 2004, the consolidated balance sheet as at the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity month of the Company and its Subsidiaries Subsidiaries, together with the related consolidated statements of income and cash flows of each for such month and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly periodmonth, setting forth, in the case of statements of income only, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and a the corresponding figures from the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all prepared in accordance with the GAAP and in reasonable detail and certified by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of each as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(ii) Quarterly Financials: as soon as available and in any event within forty-five (45) days after the end of each Fiscal Quarter (other than the last Fiscal Quarter of any Fiscal Year) commencing with the Fiscal Quarter ending March 31, 2004, (a) the consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarterly periodFiscal Quarter and the related consolidated statements of income and cash flows for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth forth, in each the case of statements of income only, in comparative form the corresponding figures for the corresponding period or date in periods of the preceding fiscal yearprevious Fiscal Year and the corresponding figures from the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all prepared in accordance with GAAP and in reasonable detail and certified by an authorized the chief financial officer of the CompanyCompany that they fairly present, in all material respects, the financial condition of each as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; providedand (b) a narrative report describing the operations of the Company and its Subsidiaries, howeverin each case, that delivery pursuant taken as a whole, in the form prepared for presentation to clause senior management for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter;
(iii) below of a copy of the Quarterly Report on Form 10Year-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, End Financials: as soon as practicable available and in any event within 100 ninety (90) days after the end of each fiscal yearFiscal Year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of (a) the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such yearFiscal Year and the related consolidated statements of income and cash flows for such Fiscal Year, setting forth forth, in each the case of statements of income only, in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the preceding fiscal yearconsolidated plan and financial forecast delivered pursuant to subsection 6.1(xiii) for the Fiscal Year covered by such financial statements, all prepared in accordance with the GAAP and in reasonable detail and examined certified by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the entities covered thereby as at the dates indicated and reported on by the results of their operations and their cash flows for the periods indicated; (b) a narrative report describing the operations of the Company and its Subsidiaries, in each case, taken as a whole, in the form prepared for presentation to senior management for such Fiscal Year; and (c) a report thereon of independent certified public accountants of recognized national standing selected by the Company; providedCompany and reasonably satisfactory to the Administrative Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed unqualified as to satisfy the requirements going concern and scope of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plansaudit, and shall state that such consolidated financial statements fairly present, in all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Datematerial respects, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other consolidated financial and other data position of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for statements) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iv) Officer’s and Compliance Certificates: together with each retail store owned or operated by delivery of financial statements of the Company and its Subsidiaries pursuant to subdivisions (ii) and (iii) above, (a) an Officer’s Certificate of the Company stating that the signer has reviewed the terms of this Agreement and has made, or caused to be made under his or her supervision, a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signer did not have knowledge of the existence as at the date of such Officer’s Certificate, of any condition or event that constitutes an Default or Event of its Subsidiaries.Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in subsection 7.6;
Appears in 1 contract
Sources: Credit Agreement (Transportation Technologies Industries Inc)
Financial Statements and Other Reports. As long as the Investor has the right to designate at least one person to be nominated for election to the Board of Directors pursuant to Section 2.1, the Company will deliver, or cause to be delivered to the Investor:
(a) The Company will, as soon as practicable between 30 days prior to and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi a budget (on a monthly basis) for the Company and its Subsidiaries for the following fiscal year (including consolidating and consolidated statements of operations);
(b) as soon as available and in any event within 45 days after the end of each month, consolidating and consolidated net income and cash flows and a statement statements of changes in consolidated stockholders' equity operations of the Company and its Subsidiaries for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, month and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarterly periodperiod and setting forth, setting forth in each case case, in comparative form form, figures for the corresponding month and period or date in the preceding fiscal yearyear and the budget for such month and for the period from the beginning of the current fiscal year to the end of such month, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below Company as fairly presenting in all material respects the financial condition and results of a copy of the Quarterly Report on Form 10-Q operations of the Company for such quarterly period filed and its Subsidiaries on a consolidated basis in accordance with the Commission shall be deemed to satisfy the requirements of this clause (i)GAAP;
(bc) The Company will, as soon as practicable and in any event within 100 45 days after the end of each fiscal yearquarter of the Company, furnish to THLi consolidating and consolidated statements of consolidated net income operations and cash flows and a statement of changes in consolidated stockholders' equity flow of the Company and its Subsidiaries for such year, quarter and for the period from the beginning of the current fiscal year to the end of such quarter and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarter, setting forth, in each case, in comparative form, figures for the corresponding quarter in the preceding fiscal year and the budget for such quarter, all in reasonable detail, and certified by an authorized financial officer of the Company as fairly presenting in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP;
(d) as soon as available and in any event within 120 days after the end of each fiscal year, consolidating and consolidated statements of operations, shareholders' equity and cash flow of the Company and its Subsidiaries for such fiscal year, and the related consolidating and consolidated balance sheets of the Company and its Subsidiaries as at the end of such fiscal year, setting forth forth, in each case case, in comparative form the form, corresponding consolidated and consolidating figures from the preceding fiscal year, all in reasonable detail and examined accompanied (i) in the case of such consolidated statements and reported on balance sheet of the Company, by an opinion thereon of independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy which shall be generally recognized as one of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits"Big Five" independent public accounting firms), other than registration which opinion shall state that such consolidated financial statements relating to employee benefit or dividend reinvestment plans, fairly present the consolidated financial condition and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies results of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.operations
Appears in 1 contract
Sources: Shareholder Agreement (Valuevision International Inc)
Financial Statements and Other Reports. Each Borrower will maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Such Borrower will deliver to each Purchaser and to any Transferee (in each case, so long as it continues to hold a Note):
(a) The Company willas soon as practicable, but in any event within 30 days after the end of (i) each month in each Fiscal Year of Parent, unaudited monthly consolidated and consolidating financial statements of Parent and its Subsidiaries for such month prepared in accordance with GAAP, and setting forth, in comparative form, the Consolidated figures for the comparable corresponding month of the previous Fiscal Year together with a certification by the principal financial or accounting officer of Parent that the information contained in such financial statements fairly presents the financial condition of Parent and its Subsidiaries as of the date thereof (subject to year-end adjustments); and (ii) each of the first eleven months in each Fiscal Year, and for the period from the beginning of then current Fiscal Year to the end of such month, a comparison setting forth the corresponding figures from the budgeted or projected figures set forth in the Projections described in Section 8.1(g) below for such period, all in reasonable detail and being prepared in accordance with GAAP; (b) as soon as practicable and in any event within 60 45 days after the end of (i) each quarterly period (other than of the last quarterly period) first three Fiscal Quarters in each fiscal Fiscal Year, consolidated balance sheets of Parent and its Subsidiaries as at the end of such period and for the year, furnish to THLi -to- date and the related consolidated and consolidating statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company Parent and its Subsidiaries for such Fiscal Quarter and for the year-to-date and setting forth, in comparative form, the Consolidated figures for the comparable corresponding Fiscal Quarter of the previous Fiscal Year; and (ii) the first three Fiscal Quarters in each Fiscal Year, and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly Fiscal Quarter, a comparison setting forth the corresponding figures from the budgeted or projected figures set forth in the Projections described in Section 8.1(g) below for such period, all in reasonable detail and being prepared in accordance with GAAP, together with a certification by the chief financial or accounting officer of Parent that the information contained in such financial statements fairly presents the financial position of Parent and its Subsidiaries as of the date thereof (subject to year-end adjustments). Notwithstanding the foregoing, the Parent's obligation under Section 8(b)(i) will be satisfied if the Parent continues to be a reporting company under the Securities Exchange Act and timely files its quarterly reports on Form 10-Q thereunder. (c) as soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of the annual audit report for such year for Parent and its Subsidiaries, including therein a consolidated balance sheet of the Company Parent and its Subsidiaries as of the end of such quarterly periodFiscal Year, a consolidated statement of income and a consolidated statement of cash flows of Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal yearFiscal Year, all and (ii) in reasonable detail and examined and reported on comparative form the corresponding projected figures for such Fiscal Year as set forth in the Projections covering such Fiscal Year previously delivered to Purchasers, in each case accompanied by an opinion of audit of independent public accountants of recognized national standing selected by standing, together with a certificate of such accounting firm to Purchasers stating that in the Company; provided, however, that delivery pursuant to clause (iii) below of a copy course of the Annual Report regular audit of the business of Parent and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof. Notwithstanding the foregoing, the Parent's obligation under Section 8(c)(i) will be satisfied if the Parent continues to be a reporting company under the Securities Exchange Act and timely files its annual report on Form 10-K thereunder.; (d) together with each delivery of financial statements of Parent and its Subsidiaries pursuant to Sections 8.1(b) and 8.1(c) above, an Officers' Certificate setting forth, if applicable, reconciliations to reflect changes in GAAP since September 30, 2001, and stating that (y) as of the Company date of such certificate, there exists no Default or Event of Default or condition that would, with either or both the giving of notice or the lapse of time, result in a Default or Event of Default, and (z) the financial statements delivered herewith were prepared in accordance with GAAP applied on a basis consistent with prior periods (except, in the case of quarterly statements, for such fiscal year provisions for footnotes and being subject to year-end audit adjustments and, in all cases, except as disclosed therein); (e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Commission shall be deemed or sent to satisfy the requirements Shareholders of Parent; (f) promptly, but in no event later than 5 business days, upon any officer of any Borrower obtaining actual knowledge, written notice: (i) of any condition or event that constitutes an Event of Default or Default or that any holder of a Note has given any notice or taken any other action with respect to a claimed Default or Event of Default under this clause Agreement, (ii);
(c) The Company will, promptly upon transmission thereof, furnish of any Person that has given any notice to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send Borrower or taken any other action with respect to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit a claimed default or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management event or condition of the Company; and
type referred to in Section 8.1(b) which could reasonably be expected to have a Material Adverse Effect, or (eiii) Until the two-year anniversary any pending or threatened condemnation proceedings by any Governmental Authority affecting any Properties or Assets of the First Closing Datesuch Borrower, the Company will, condemnation of which reasonably could be expected to have a Material Adverse Effect; (g) as soon as practicablethey are available, and but in any event within 5 60 days after prior to the end beginning of each monthFiscal Year, furnish to THLi Projections for such Fiscal Year. Such Projections shall be in form and GECC detailed reports, substance consistent with Parent's past practices and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds shall be certified by the Company chief financial or accounting officer of Parent as being such officer's good faith estimate of the financial performance of Parent and its Subsidiaries and during such period; (iih) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi upon receipt thereof, copies of any reports furnished all accountant's management letters delivered to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company Parent or any of its Subsidiaries; (i) during the following week, in each week of each Fiscal Year a report for the previous week setting forth data relating to the month-to-date sales and a cash report of the Parent and its Subsidiaries for such period; and (j) with reasonable promptness, such other information and data with respect to any Borrower as from time to time may be reasonably requested by the Purchasers, including information regarding the business, assets, financial condition, income or prospects of such Borrower;.
Appears in 1 contract
Sources: Securities Purchase Agreement (Shells Seafood Restaurants Inc)
Financial Statements and Other Reports. (a) The Company will, covenants that it will deliver to Purchaser:
(i) as soon as practicable and in any event within 60 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi consolidated statements of consolidated net income income, changes in stockholders' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its consolidated Subsidiaries (including the Company Subsidiary) for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its consolidated Subsidiaries (including the Company Subsidiary) as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, provided however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report Company's periodic report on Form 10-Q of the Company for such quarterly period filed with the Commission SEC shall be deemed to satisfy the requirements of this clause (i);
(bii) The Company will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its consolidated Subsidiaries (including the Company Subsidiary) as of the end of such yearfiscal year and the related consolidated statements of income, setting forth changes in each case in comparative form the corresponding figures from the preceding stockholders' equity and cash flows for such fiscal year, all in reasonable detail and examined and reported on by together with the audit report of KPMG LLP or other independent public accountants of recognized national standing selected by the Company; providedprovided , however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission SEC shall be deemed to satisfy the requirements of this clause (ii);; and
(ca) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and b) all such regular and periodic reports on Forms 10-K, 10-Q and 8-K (or similar or substitute forms) as it shall file with the Commission;
(d) SEC. The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management obligations of the Company; and
(e) Until Company to deliver the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and materials described in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to clauses (i) the use through (iii) of Proceeds by the Company this Section 4.05 to Purchaser shall continue in full force and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies effect until such time as Purchaser shall no longer own Preferred Shares or Rights convertible into or exercisable for shares of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies Common Stock, or shares of any compliance certificates furnished to lenders in respect of indebtedness Common Stock issued upon exercise of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data Rights or conversion of the Company and its Subsidiaries as such Purchaser may reasonably requestPreferred Shares, including, but not limited to, operating financial information for each retail store owned or operated by in either case equal to at least 2% of the Company or any of its SubsidiariesCommon Stock then outstanding.
Appears in 1 contract
Financial Statements and Other Reports. (ai) The Company will, as soon as practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi each Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
; (bii) The Company it will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi each Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
; (ciii) The Company it will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
; (div) The Company it will, promptly after such package becomes available, furnish to THLi each Purchaser copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (iiv) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company it will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi each Purchaser copies of any compliance certificates furnished to lenders in respect of indebtedness Indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries. Together with each delivery of financial statements required by clauses (i) and (ii) above, the Company will deliver to each Purchaser a certificate of the Chief Financial Officer, Treasurer or other financial officer of the Company regarding compliance by the Company with the covenants set forth in Section 6.2.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Electric Capital Corp)
Financial Statements and Other Reports. Company will deliver to Administrative Agent for further distribution (and which Administrative Agent shall promptly distribute) to each Lender, in form and detail reasonably satisfactory to Administrative Agent:
(a) The Company will, as soon as practicable available and in any event within 60 twenty-five (25) days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the first two (2) months of each Fiscal Quarter ending after the Closing Date (such reports, the "MONTHLY REPORTS"), (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such month and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such month and (ii) for any Monthly Reports delivered after the first anniversary of the Closing Date, for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth beginning with the monthly financial statements for fiscal year 2005, in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding fiscal yearprevious Fiscal Year, all in reasonable detail detail, together with a CFO Certification and certified by an authorized financial officer MD&A with respect to each of the Company, subject to changes resulting from year-end adjustmentsforegoing; provided, howeverthat if the Credit Agreement Termination Date has occurred or Company is not otherwise required to deliver such Monthly Reports under the Credit Agreement, that delivery then Company shall not be required to deliver any Monthly Reports pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (iSection 5.1(a);
(b) The Company will, as soon as practicable available and in any event within 100 forty-five (45) days after the end of the first three (3) Fiscal Quarters of each fiscal yearFiscal Year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such yearFiscal Quarter and the related consolidated statements of income, stockholders' equity and cash flows of Company and SENIOR UNSECURED TERM LOAN AND GUARANTY AGREEMENT EXECUTION 838278-New York Server 7A 57 its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, all in reasonable detail detail, together with (i) a quarterly accounts receivable exposure report for such Fiscal Quarter in the form prepared by management of Company in the ordinary course of business and examined (ii) a CFO Certification and reported on an MD&A with respect thereto;
(c) as soon as available and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a CFO Certification and an MD&A with respect thereto; and (ii) in the case of such consolidated financial statements, a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant Company and in form and substance reasonably satisfactory to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the CommissionAdministrative Agent;
(d) The [RESERVED].
(i) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Company willand its Subsidiaries delivered pursuant to Section 5.1 (a), promptly 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then together with the first delivery of such financial statements after such package becomes availablechange, furnish one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to THLi Administrative Agent; and (ii) promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all financial reporting packages prepared for final management letters submitted to Company by independent certified public accountants in connection with each annual, interim or special audit of the Company; andfinancial statements of Company and its Subsidiaries made by such accountants, including any comment letter submitted by such accountants to management in connection with their annual audit;
(ef) Until [RESERVED].
(g) promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Company to its public security holders in such capacity or by any Subsidiary of Company to its security holders other than Company or another Subsidiary of Company, and (ii) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by Company or any of its Subsidiaries with SENIOR UNSECURED TERM LOAN AND GUARANTY AGREEMENT EXECUTION 838278-New York Server 7A any securities exchange or with the two-year anniversary Securities and Exchange Commission or any governmental or private regulatory authority;
(h) promptly upon any Responsible Officer obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Company with respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1 (b); or (iii) of the First Closing Dateoccurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any Responsible Officer obtaining knowledge of (i) the institution of, or any written threat of, any Adverse Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) is reasonably likely to give rise to a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Company willto enable Lenders and their counsel to evaluate such matters;
(i) promptly but in any event within twenty (20) days after Company, any of its Subsidiaries or any of its ERISA Affiliates knows, or has reason to know, that (1) any ERISA Event with respect to an Employee Benefit Plan has occurred or will occur, or (2) Company, any of its Subsidiaries or any of their respective ERISA Affiliates has applied for a waiver of the minimum funding standard under Section 412 of the Code or Section 3 02 of ERISA, or ( 3) the aggregate present value of the Unfunded Benefit Liabilities under all Pension Plans has in any year increased by to an amount in excess of $1,000,000, or (4) any ERISA Event occurs with respect to a Multiemployer Plan which presents a material risk of a partial or complete withdrawal (as described in Section 4203 or 4205 of ERISA) by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan and such withdrawal is reasonably expected to trigger withdrawal liability payments in any year in excess of $5,000,000, or (5) Company, any of its Subsidiaries or any of their respective ERISA Affiliates is in "default" (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan, or (6) the potential withdrawal liability (as determined in accordance with Title IV of ERISA) of Company, any of its Subsidiaries and their respective ERISA Affiliates with respect to all Multiemployer Plans has in any year increased to an amount in excess of $5,000,000, or (7) there is an action brought against Company, any of its Subsidiaries or any of their respective ERISA Affiliates under Section 502 of ERISA with respect to its failure to comply with Section 515 of ERISA, a certificate of the president or chief financial officer of Company setting forth the details of each of the events described in clauses (1) through (7) above as applicable and the SENIOR UNSECURED TERM LOAN AND GUARANTY AGREEMENT EXECUTION 838278-New York Server 7A action which Company, any of its Subsidiaries or their respective ERISA Affiliates proposes to take with respect thereto, together with a copy of any notice or filing from the PBGC or which may be required by the PBGC or other agency of the United States government with respect to each of the events described in clauses (1) through (7) above, as applicable;
(ii) As soon as practicable, possible and in any event within 5 ten (10) Business Days after the receipt by the Company (or to the knowledge of the Company, after receipt by any of its Subsidiaries or any of their respective ERISA Affiliates) of a demand letter from the PBGC notifying the Company, its Subsidiaries or their respective ERISA Affiliates of its decision finding liability, a copy of such letter, together with a certificate of the president or chief financial officer of the Company setting forth the action which the Company, its Subsidiaries or their respective ERISA Affiliates proposes to take with respect thereto;
(k) as soon as practicable and in any event no later than sixty (60) days after the end beginning of each monthFiscal Year, furnish to THLi a consolidated plan and GECC detailed reportsfinancial forecast for such Fiscal Year (a "FINANCIAL PLAN"), and any other information THLi and GECC may reasonably request, relating to including (i) the use a forecasted consolidated balance sheet and forecasted consolidated statements of Proceeds by the income and cash flows of Company and its Subsidiaries and for such Fiscal Year, together with an explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for each month of each Fiscal Year, together with an explanation of the Company's compliance with the Retail Plan assumptions on which such forecasts are based, and the E-Commerce Plan(iii) such other information and projections as any Lender may reasonably request;
(fl) The Company will promptly furnish to THLi with reasonable promptness, copies of any reports furnished material amendment, restatement, supplement or other modification to GECC pursuant to or waiver of the Note AgreementStock Purchase Agreement and the Management Agreement entered into after the Closing Date; and
(gm) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial information and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the with respect to Company or any of its SubsidiariesSubsidiaries as from time to time may be reasonably requested by any Lender (through the Administrative Agent).
Appears in 1 contract
Sources: Senior Unsecured Term Loan and Guaranty Agreement (Simmons Co /Ga/)
Financial Statements and Other Reports. The Company will deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) The Company will, as soon as practicable and (i) no later than the date on which such financial statements are filed with the SEC but in any event within 60 no later than 45 days after the end of each quarterly period (other than of the last quarterly period) in first three fiscal quarters of each fiscal year, furnish to THLi statements of the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its Subsidiaries as at the end of the first three fiscal quarters of each fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, and a (ii) promptly when available but in any event no later than 45 days after the end of each of the first three fiscal quarters of each fiscal year, the consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal quarter and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such quarterly periodfiscal quarter, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal year, all in reasonable detail and certified (in the case of both clauses (i) and (ii) above) by an authorized the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable (i) no later than the date on which such financial statements are filed with the SEC and in any event within 100 no later than 90 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a audited consolidated balance sheet of the Company and its Subsidiaries as at the end of each fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, (ii) promptly when available but in any event no later than 90 days after the end of each fiscal year, the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case (under both clauses (i) and (ii) above) in comparative form the corresponding figures from for the preceding previous fiscal year, all in reasonable detail and examined certified (in the case of both clauses (i) and reported on (ii) above) by the chief financial officer of the Company that they fairly present, in all material respects, the financial condition of the Company and its Subsidiaries as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year and (iii) in the case of both clauses (i) and (ii) above, a report thereon of a firm of independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant which report shall be unqualified as to clause (iii) below the scope of a copy audit or as to the going concern status of the Annual Report on Form 10-K Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be (in either case, taken as a whole), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial condition of the Company, its Subsidiaries or the Company and its Subsidiaries, as the case may be, as at the end of such fiscal year and the results of their operations and their cash flows for such fiscal year filed in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the Commission shall be deemed to satisfy the requirements of this clause (ii)examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(c) The together with each delivery of financial statements of the Company willand its Subsidiaries pursuant to subdivisions (a) and (b) above, promptly upon transmission a Compliance Certificate of the Company (i) stating that the applicable Responsible Officer does not have knowledge of the existence, as at the date of such Compliance Certificate, of any condition or event that constitutes a Default or Event of Default, or, if any such condition or event exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; (ii) demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the covenants set forth in Section 8.06 and with any specific dollar amounts specified in respect of any restrictions contained in any other provisions of Article VIII (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes); and (iii) setting forth any change in the identity of any of the Subsidiaries of the Company since the Effective Date (or, if applicable, since the date of the most recent Compliance Certificate delivered to Lenders in accordance with this clause (c));
(d) together with each delivery of consolidated financial statements of the Company and its Subsidiaries pursuant to Section 7.01(b) above, a written statement by the independent certified public accountants giving the report thereon stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default under Section 8.06 has come to their attention and, if such a condition or event has come to their attention, specifying the nature thereof, furnish except to each Purchaser the extent that the delivery of such statement would be prohibited by professional auditing standards applicable to such matters;
(e) promptly after the transmission thereof by the Company or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K, 10-Q, or 8-K and any effective registration statements (and, upon the effectiveness thereof, any material amendments thereto) filed with the SEC (but not any exhibits to any such registration statement or amendment (except as provided below) or any registration statement on Form S-8), and copies of all such financial statements, proxy statements, notices and reports that the Company or any of its Subsidiaries actually sends to the holders of any publicly-issued securities of the Company or any of its Subsidiaries in their capacity as it shall send such holders (in each case to its stockholders the extent not theretofore delivered to Lenders pursuant to this Agreement and copies of all such registration statements (without exhibitsin each case including, to the extent requested by Administrative Agent, any schedules and exhibits thereto), other than registration statements relating in each case as so transmitted to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce PlanSEC;
(f) The promptly upon any Responsible Officer of the Company will promptly furnish to THLi copies obtaining actual knowledge of any reports furnished condition or event that constitutes a Default or an Event of Default, a written notice specifying the nature and period of existence of such condition or event, and what action the Company has taken, is taking and proposes to GECC pursuant to the Note Agreement; andtake with respect thereto;
(g) The promptly upon any Responsible Officer of the Company will obtaining actual knowledge of (i) the institution of any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, “Proceedings”) not previously disclosed in writing by the Company to Lenders or any material development in any Proceeding that, in any such case, could reasonably be expected to give rise to a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to the Company to enable Lenders and their counsel to evaluate such matters;
(h) promptly furnish upon any Responsible Officer of the Company obtaining knowledge of the occurrence or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof and what action the Company, any of its Subsidiaries or any ERISA Affiliate has taken, is taking or proposes to THLi take with respect thereto; promptly upon receipt thereof, copies of any compliance certificates furnished to lenders in respect notice received by the Company, any of indebtedness its Subsidiaries or any ERISA Affiliate from the IRS, the Department of Labor or the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event;
(i) [Reserved];
(j) promptly upon any Responsible Officer of the Company and obtaining knowledge of any one or more of the following environmental matters the existence of which, either individually or when aggregated with all other such matters, would reasonably be expected to result in a Material Adverse Effect, a written notice specifying in reasonable detail the nature thereof:
(1) any pending or threatened Environmental Claim against the Company or any of its Subsidiaries andor any land, with reasonable promptness, furnish to each Purchaser such other financial buildings and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store improvements owned or operated leased by the Company or any of its Subsidiaries (but excluding all operating fixtures and equipment, whether or not incorporated into improvements) (collectively, “Real Estate”);
(2) any condition or occurrence that (x) results in noncompliance by the Company or any of its Subsidiaries with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against the Company or any of its Subsidiaries or any Real Estate;
(3) any condition or occurrence on any Real Estate that could reasonably be anticipated to cause such Real Estate to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Estate under any Environmental Law; or
(4) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Estate;
(k) promptly upon any Responsible Officer of the Company obtaining actual knowledge thereof, written notice of:
(1) any announcement by Moody’s, S&P or Fitch of any change in a Debt Rating;
(2) any change in accounting policies or financial reporting practices by the Company or any Subsidiary that has a material impact on the consolidated financial statements of the Company and its Subsidiaries;
(3) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (A) breach or non-performance of, or any default under, a Contractual Obligation of the Company or any Subsidiary; or (B) any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority;
(l) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in such certification; and
(m) with reasonable promptness, (i) such other information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested by the Administrative Agent on its own behalf or on behalf of Required Lenders and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to this Section shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.01(e) (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 Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Company’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: (A) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company 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. The Borrower hereby acknowledges that (a) the Administrative Agent and/or J.▇. ▇▇▇▇▇▇ Securities LLC will 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 IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, J.▇. ▇▇▇▇▇▇ Securities LLC 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 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and J.▇. ▇▇▇▇▇▇ Securities LLC shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
Appears in 1 contract
Sources: Three Year Term Loan Credit Agreement (Amphenol Corp /De/)
Financial Statements and Other Reports. Company will maintain, and cause each of the Subsidiary Guarantors and Principal Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver to Administrative Agent and Lenders:
(ai) The Company will, Operating Information: as soon as practicable available, and in any event within 60 45 days after the end of each quarterly period specified (unless otherwise specified), a report or reports showing, for such period (other than a) risk-based capital of each Regulated Subsidiary at the last quarterly periodend of each Fiscal Year (to be provided with 90 days after the end of each Fiscal Year), (b) in statutory net worth of each fiscal year, furnish Regulated Subsidiary at the end of each Fiscal Quarter (to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity be provided within 45 days of the end of each of the first three Fiscal Quarters and 90 days after the end of the fourth Fiscal Quarter of each Fiscal Year), (c) dividends requested and received from each Regulated Subsidiary during each Fiscal Quarter, (d) the number of members as of the end of each Fiscal Quarter by state and Product and (e) the following information for Company and its Subsidiaries on a consolidated and quarterly basis: (1) medical loss ratio, (2) administrative loss ratio, (3) premium revenue on a per member per month basis, (4) medical expenses on a per member per month basis, (5) administrative expense on a per member per month basis and (6) the number of fully insured member months.
(ii) Quarterly Financials: as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, (a) the consolidated balance sheets of Company and its Subsidiaries as at the end of such fiscal period and the related consolidated statements of operations, shareholders' equity and cash flows of Company and its Subsidiaries for such fiscal period and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, fiscal period and a consolidated the balance sheet of the Company and its Subsidiaries only as of at the end of such quarterly fiscal period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail, subject to changes resulting from audit and normal year-end adjustments (which requirement may be satisfied, to the preceding fiscal extent such report contains the information specified, by the delivery of Company's Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission, by the time specified), and (b) a certificate of the chief financial officer of Company that such financial statements fairly present, in all material respects, the financial condition of Company and its Subsidiaries and of Company only as at the dates indicated and the results of operations and cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(iii) Year-End Financials: as soon as available and in any event within 90 days after the end of each Fiscal Year, (a) the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of operations, shareholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year and the balance sheet of Company only as at the end of such Fiscal Year and cash flows of Company only for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, all in reasonable detail (which requirement may be satisfied, to the extent such report contains the information specified, by the delivery of Company's Annual Report on Form 10-K, as filed with the Securities and examined Exchange Commission, by the time specified), (b) a certificate of the chief financial officer of Company that such financial statements fairly present, in all material respects, the financial condition of Company and reported on by its Subsidiaries and of Company only as at the dates indicated and the results of operations and cash flows for the periods indicated, and (c) in the case of such consolidated financial statements, a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by the Company; providedCompany and satisfactory to Administrative Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed to satisfy unqualified, shall express no doubts about the requirements ability of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries to continue as a going concern, and (ii) shall state that such consolidated financial statements fairly present, in all material respects, the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies consolidated financial position of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated statements) and that the examination by the Company or any of its Subsidiaries.such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
Appears in 1 contract
Financial Statements and Other Reports. Borrower will deliver to Administrative Agent:
(a) The Company will, as soon as practicable available and in any event within 60 thirty (30) days after the end of each quarterly period month ending after the Closing Date (other than any Fiscal Quarter end), the last quarterly period) in each fiscal year, furnish to THLi consolidated balance sheet of Borrower and its Subsidiaries as at the end of such month and the related consolidated statements of consolidated net income income, members' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company Borrower and its Subsidiaries for such month and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearmonth, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, to the extent prepared on a monthly basis, all in reasonable detail detail, together with a Financial Officer Certification with respect thereto;
(b) as soon as available and examined in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of Borrower and reported on its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income, members' equity and cash flows of Borrower and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto;
(c) as soon as available and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, members' equity and cash flows of Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by Borrower and in form and substance reasonably satisfactory to Administrative Agent, together with a written statement by such independent certified public accountants stating whether, in connection therewith, any condition or event that constitutes a Default or an Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the Company; provided, however, that delivery pursuant to clause (iii) below nature and period of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission existence thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company willtogether with each delivery of financial statements of Borrower and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; anda duly executed and completed Compliance Certificate;
(e) Until if, as a result of any change in accounting principles and policies from those used in the two-year anniversary preparation of the First Closing DatePro Forma Financial Statements, the Company willconsolidated financial statements of Borrower and its Subsidiaries delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then promptly after and in no event more than sixty (60) days after the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent;
(f) promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Holdings to its members acting in such capacity or by any Borrower or any Subsidiary of Borrower to its security holders other than another Subsidiary of Borrower, (ii) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by Holdings, Borrower or any of their respective Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority, and (iii) all press releases and other statements made available generally by Holdings, Borrower or any of their respective Subsidiaries to the public concerning material developments in the business of Holdings, Borrower or any of their respective Subsidiaries;
(g) promptly upon any officer of Borrower obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Holdings or Borrower with respect thereto; (ii) that any Person has given any notice to Holdings, Borrower or any of their respective Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of Borrower, executed on behalf of Borrower by its Authorized Officers, specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Borrower has taken, is taking and proposes to take with respect thereto;
(h) promptly upon any officer of Borrower obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by Borrower to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Borrower to enable Lenders and their counsel to evaluate such matters;
(i) promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices received by Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably request;
(j) as soon as practicablepracticable and in any event no later than thirty (30) days after to the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year and the next three succeeding Fiscal Years (a "FINANCIAL PLAN"), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Borrower and its Subsidiaries for each such Fiscal Year, together with pro forma Compliance Certificates for each such Fiscal Year and an explanation of the assumptions on which such forecasts are based and (ii) forecasted consolidated statements of income and cash flows of Borrower and its Subsidiaries for each month of each such Fiscal Year, together with the assumptions on which such forecasts are based stated in reasonable detail;
(k) as soon as practicable and in any event by the last day of each Fiscal Year, a report in form and substance satisfactory to Administrative Agent outlining all material insurance coverage maintained as of the date of such report by Borrower and its Subsidiaries and all material insurance coverage planned to be maintained by Borrower and its Subsidiaries in the immediately succeeding Fiscal Year;
(l) together with each delivery of financial statements pursuant to Sections 5.1(a), 5.1(b), and 5.1(c), written notice of any change in the Board of Directors of Borrower or Holdings during the period for which such financial statements are delivered;
(m) promptly, and in any event within 5 days ten (10) Business Days after any Material Contract of Holdings, Borrower or any of their respective Subsidiaries is terminated or amended in a manner that is materially adverse to Holdings, Borrower or such Subsidiary, as the end case may be;
(n) together with each delivery of each monthfinancial statements pursuant to Sections 5.1(a), furnish to THLi and GECC detailed reports5.1(b), and 5.1(c), a written statement describing any other information THLi new Material Contract entered into during the period for which such financial statements are delivered to Administrative Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no such prohibition on delivery shall be effective if it were bargained for by Holdings, Borrower or its applicable Subsidiary with the intent of avoiding compliance with this Section 5.1(n)), and GECC may an explanation of any actions being taken with respect thereto;
(o) as soon as practicable following receipt thereof, copies of all environmental audits and reports with respect to environmental matters at any Facility or which relate to any environmental liabilities of Borrower or its Subsidiaries which, in any such case, individually or in the aggregate, could reasonably request, relating be expected to result in a Material Adverse Effect;
(p) Borrower will deliver to Administrative Agent and Lenders:
(i) the use as soon as practicable following receipt thereof, copies of Proceeds all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by the Company and personnel of Borrower or any of its Subsidiaries and or by independent consultants, governmental authorities or any other Persons, with respect to significant environmental matters at any Facility or with respect to any Environmental Claims;
(ii) promptly upon the Companyoccurrence thereof, written notice describing in reasonable detail (1) any Release required to be reported to any federal, state or local governmental or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken by Borrower or any other Person in response to (A) any Hazardous Materials Activities the existence of which has a reasonable possibility of resulting in one or more Environmental Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of resulting in a Material Adverse Effect, and (3) Borrower's compliance with discovery of any occurrence or condition on any real property adjoining or in the Retail Plan and vicinity of any Facility that could cause such Facility or any part thereof to be subject to any material restrictions on the E-Commerce Planownership, occupancy, transferability or use thereof under any Environmental Laws;
(fiii) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to as soon as practicable following the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned sending or operated receipt thereof by the Company Borrower or any of its Subsidiaries, a copy of any and all written communications with respect to (1) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of giving rise to a Material Adverse Effect, (2) any Release required to be reported to any federal, state or local governmental or regulatory agency, and (3) any request for information from any governmental agency that suggests such agency is investigating whether Borrower or any of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity;
(iv) prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or property by Borrower or any of its Subsidiaries that could reasonably be expected to (A) expose Borrower or any of its Subsidiaries to, or result in, Environmental Claims that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B) affect the ability of Borrower or any of its Subsidiaries to maintain in full force and effect all material Governmental Authorizations required under any Environmental Laws for their respective operations and (2) any proposed action to be taken by Borrower or any of its Subsidiaries to modify current operations in a manner that could reasonably be expected to subject Borrower or any of its Subsidiaries to any additional obligations or requirements under any Environmental Laws; and
(v) with reasonable promptness, such other documents and information as from time to time may be reasonably requested by Administrative Agent in relation to any matters disclosed pursuant to this Section 5.1(o); and
(q) with reasonable promptness, such other information and data with respect to Holdings, Borrower or any of their respective Subsidiaries as from time to time may be reasonably requested by Administrative Agent or Requisite Lenders.
Appears in 1 contract
Financial Statements and Other Reports. As long as the Investor has the right to designate at least one person to be nominated for election to the Board of Directors pursuant to Section 2.1, the Company will deliver, or cause to be delivered to the Investor: (a) The Company will, as soon as practicable between 30 days prior to and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi a budget (on a monthly basis) for the Company and its Subsidiaries for the following fiscal year (including consolidating and consolidated statements of operations); (b) as soon as available and in any event within 45 days after the end of each month, consolidating and consolidated net income and cash flows and a statement statements of changes in consolidated stockholders' equity operations of the Company and its Subsidiaries for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, month and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarterly periodperiod and setting forth, setting forth in each case case, in comparative form form, figures for the corresponding month and period or date in the preceding fiscal yearyear and the budget for such month and for the period from the beginning of the current fiscal year to the end of such month, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below Company as fairly presenting in all material respects the financial condition and results of a copy of the Quarterly Report on Form 10-Q operations of the Company for such quarterly period filed and its Subsidiaries on a consolidated basis in accordance with the Commission shall be deemed to satisfy the requirements of this clause GAAP; (i);
(bc) The Company will, as soon as practicable and in any event within 100 45 days after the end of each fiscal yearquarter of the Company, furnish to THLi consolidating and consolidated statements of consolidated net income operations and cash flows and a statement of changes in consolidated stockholders' equity flow of the Company and its Subsidiaries for such year, quarter and for the period from the beginning of the current fiscal year to the end of such quarter and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarter, setting forth, in each case, in comparative form, figures for the corresponding quarter in the preceding fiscal year and the budget for such quarter, all in reasonable detail, and certified by an authorized financial officer of the Company as fairly presenting in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP; (d) as soon as available and in any event within 120 days after the end of each fiscal year, consolidating and consolidated statements of operations, shareholders' equity and cash flow of the Company and its Subsidiaries for such fiscal year, and the related consolidating and consolidated balance sheets of the Company and its Subsidiaries as at the end of such fiscal year, setting forth forth, in each case case, in comparative form the form, corresponding consolidated and consolidating figures from the preceding fiscal year, all in reasonable detail and examined accompanied (i) in the case of such consolidated statements and reported on balance sheet of the Company, by an opinion thereon of independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy which shall be generally recognized as one of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits"Big Five" independent public accounting firms), other than registration which opinion shall state that such consolidated financial statements relating to employee benefit or dividend reinvestment plans, fairly present the consolidated financial condition and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies results of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data operations of the Company and its Subsidiaries as at the end of, and for, such Purchaser may reasonably requestfiscal year in accordance with GAAP, and (ii) in the case of such consolidating statements and balance sheets, by a certificate of an authorized financial officer of the Company, which certificate shall state that such consolidating financial statements fairly present, in all material respects, the respective individual unconsolidated financial condition and results of operations of the Company and of each of its Subsidiaries, in each case in accordance with GAAP, consistently applied, as at the end of, and for, such fiscal year; (e) promptly upon transmission thereof to the shareholders of the Company generally or to any other security holder of the Company, including, but not limited towithout limitation, operating any holder of debt, copies of all financial information for statements, notices, certificates, annual reports and proxy statements so transmitted; (f) promptly upon receipt thereof, a copy of each retail store owned or operated by other report submitted to the Company or any of its Subsidiaries.Subsidiaries by independent accountants in connection with any annual, interim or special audit of the books of the Company or any of its Subsidiaries made by such accountants, or any management letters or similar document submitted to the Company or any of its Subsidiaries by such accountants;
Appears in 1 contract
Sources: Shareholder Agreement (Valuevision International Inc)
Financial Statements and Other Reports. (a) The Company willwill maintain, as soon as practicable and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in any event accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Company will deliver to the Lenders and the Agent:
(i) within 60 30 days after the end of each quarterly period fiscal month (other than the last quarterly periodfiscal months ending March, June, September and December) in each fiscal yearof the Company, furnish to THLi statements of consolidated net income (i) the combined and cash flows and a statement of changes in consolidated stockholders' equity combining balance sheets of the Company and its Subsidiaries for the period from the beginning of the then current each fiscal year to the end of such quarterly periodmonth, and a consolidated balance sheet of the Company and its Subsidiaries each as of the end of such quarterly periodmonth and the related combined and combining statements of income and statements of cash flows for such month and for the last elapsed portion of the fiscal year ended with the last day of such month, in each case setting forth in each case in the statements of income only, the comparative form figures for the corresponding period or date month in the preceding prior fiscal year, all year and the budgeted figures for such month as set forth in reasonable detail the respective budgets delivered pursuant to Section 5.1(v) and certified by an authorized financial officer (ii) the balance sheets of each of the CompanyStations on an individual basis as of the end of such month and the related statements of income and statements of cash flows for such month and for the elapsed portion of the fiscal year ended with the last day of such month, subject to changes resulting from year-end adjustments; providedin each case setting forth in the statements of income only, however, that delivery the comparative figures for the corresponding month in the prior fiscal year and the budgeted figures for such month as set forth in the respective budgets delivered pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (iSection 5.1(v);
(bii) The Company will, as soon as practicable available and in any event within 100 45 days after the end close of each of the first three quarterly accounting periods in each fiscal year, furnish to THLi statements year of consolidated net income the Company; (i) the combined and cash flows and a statement of changes in consolidated stockholders' equity combining balance sheets of the Company and its Subsidiaries for each fiscal quarter, each as of the end of such yearquarter and the related combined and combining statements of income and statements of cash flows for such quarter and for the last elapsed portion of the fiscal year ended with the last day of such quarter and setting forth in the statements of income only, the comparative figures for the corresponding quarter in the prior fiscal year and the budgeted figures for such quarter as set forth in the respective budgets delivered pursuant to Section 5.1(v), and a (ii) the balance sheets of each of the Stations as of the end of such quarter and the related statements of income and statements of cash flows for such quarter and for the elapsed portion of the fiscal year ended with the last day of such quarter, in each case setting forth in the statements of income only, the comparative figures for the corresponding quarter in the prior fiscal year and the budgeted figures for such quarter as set forth in the respective budgets delivered pursuant to Section 5.1(v); 57 -52-
(iii) within 95 days after the close of each fiscal year of the Company, (i) the consolidated and consolidating balance sheet sheets of the Company and its Subsidiaries for each fiscal year, each as of at the end of such yearfiscal year and the related statements of income and retained earnings and of cash flows for such fiscal year and, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal yearyear and certified, all in reasonable detail and examined and reported on the case of such consolidated statements, by Coopers & Lybr▇▇▇ ▇.▇.P. or such other independent certified public accountants of recognized national standing selected by reasonably acceptable to the Company; providedAgent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with balance sheets of each of the Retail Plan Stations at the end of such fiscal year and the E-Commerce Plan;
related statement of income and retained earnings and statement of cash flows for such fiscal year, in each case setting forth comparative figures for the preceding fiscal year for income statements only and (fiii) The Company will promptly furnish to THLi copies management's discussions and analysis of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders important operational and financial developments during such fiscal year in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of Subsidiaries;
(iv) promptly after the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated receipt thereof by the Company or any of its Subsidiaries, a copy of any final "management letter" received by the Company or such Subsidiary from its certified public accountants and a copy of management's responses thereto;
(v) no later than 30 days following the commencement of the first day of each fiscal year of the Company, budgeted statements of income in form satisfactory to the Agent prepared by the Company for (x) each of the twelve months of such fiscal year prepared in detail, and (y) each of the four years immediately following such fiscal year prepared in summary form, in each case, of each of the Company and its Subsidiaries and each of the Stations on an individual basis accompanied by the statement of the President or Chief Financial Officer or the Senior Vice President of Finance or any other person designated in writing by the foregoing of the Borrower to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby;
(vi) isted or exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance (as determined in accordance with GAAP) during and at the end of such accounting periods with the restrictions contained in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8 and 6.11;
(vii) promptly, and in any event within three Business Days after an Officer of the Company obtains knowledge thereof, notice of (1) the occurrence of any event which constitutes a Default or Event of Default and (ii) any litigation or governmental investigation or proceeding pending (x) against the Company or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect, (y) with respect to any material Indebtedness of the Company and its Subsidiaries taken as a whole or (z) with respect to any other document which could reasonably be expected to have a Material Adverse Effect;
(viii) promptly, copies of all (x) financial information, proxy materials and other information and reports, if any, which the Company or any of its Subsidiaries shall file with the Commission or any successor thereto, or deliver to holders of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any trustee, agent or other representative therefor) and (y) material filings or communications with the FCC or under, or as required by, the Communications Act;
(ix) from time to time, such other information or documents (financial or otherwise) with respect to the Company or its Subsidiaries as any Lender may reasonably request in writing;
(x) promptly upon any executive officer of the Company obtaining knowledge (a) of any condition or event that constitutes an Event of Default or Potential Event of Default, or becoming aware that the Lenders or Agent has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement, (b) that any Person has given any notice to the Company or any Subsidiary of the Company or taken any other action with respect to a claimed default or event or condition that might result in an Event of Default referred to in Section 7.2, (c) of any condition or event that would be required to be disclosed in a current report filed with the Commission on Form 8-K whether or not the Company is required to file such reports under the Exchange Act or (d) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officers' Certificate specifying the nature and period of existence of any such 59 -54- condition or event, or specifying the notice given or action taken by such holder or Person and the nature of such claimed default, Event of Default, Potential Event of Default, event or condition, and what action the Company has taken, is taking and proposes to take with respect thereto;
(xi) promptly upon any executive officer of the Company obtaining knowledge of (X) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, "Proceedings") not previously disclosed in writing by the Company to the Lenders or (Y) any material development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the Transactions; written notice thereof together with such other information as may be reasonably available to the Company or any of its Subsidiaries to enable the Lenders and its counsel to evaluate such matters;
(xii) not later than the last day of each fiscal year of the Company, a report in form and substance satisfactory to the Agent outlining all material insurance coverage maintained as of the date of such report by the Company and its Subsidiaries and all material insurance coverage planned to be maintained by such Persons in the subsequent fiscal year;
(xiv) promptly after the availability thereof, copies of all material amendments to the certificate of incorporation or by-laws of the Company or Chancellor;
(xv) promptly upon any Person becoming a Subsidiary of the Company, a written notice setting forth with respect to such Person (a) the date on which such Person became a Subsidiary of the Company and (b) all of the data required to be set forth in Schedule B with respect to all Subsidiaries of the Company; and
(xvi) with reasonable promptness, such other information and data with respect to the Company or any of its Subsidiaries or any of their respective property, business or assets as from time to time may be reasonably requested by any Lender; provided that no information or data shall be required to be delivered hereunder or under any other provision of this Agreement if it would violate any applicable attorney-client or accountant-client privilege.
Appears in 1 contract
Sources: Senior Credit Agreement (Chancellor Radio Broadcasting Co)
Financial Statements and Other Reports. Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financials: (a) The Company will, as soon as practicable and in any event within 60 no later than 45 days after the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of the first three Fiscal Quarters of each quarterly period (other than Fiscal Year and the last quarterly period) in each fiscal year, furnish to THLi related consolidated statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company Company, its Subsidiaries and its Unrestricted Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly periodFiscal Quarter, and a (b) promptly when available but in any event no later than 60 days after the end of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of the Company and its Subsidiaries as at the end of each ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the related consolidated statements of income and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such quarterly periodFiscal Quarter, setting forth in each case (under both clauses (a) and (b) above) in comparative form the corresponding figures for the corresponding period or date in periods of the preceding fiscal yearprevious Fiscal Year, all in reasonable detail and certified (in the case of both clauses (a) and (b) above) by an authorized the chief financial officer of Company that they fairly present, in all material respects in accordance with GAAP, the financial condition of Company, its Subsidiaries and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Alliance HealthCare Services, Inc)
Financial Statements and Other Reports. Borrower will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Borrower will deliver to Lender:
(ai) The Company will, Monthly Financials: as soon as practicable available and in any event within 60 45 days after the end of each quarterly period month ending after the Initial Effective Date, copies of the monthly cash flow statements, balance sheets and income statements for such month of Borrower and each Subsidiary, on a consolidated and consolidating basis, together with such additional reports and information provided to the Board of Directors of Borrower on a monthly or periodic basis;
(other than ii) Quarterly Financials: as soon as available and in any event within 45 days after the last quarterly period) in end of each fiscal yearof Borrower's first three Fiscal Quarters, furnish to THLi the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company Borrower and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.reasonable
Appears in 1 contract
Financial Statements and Other Reports. (a) The Company willcovenants -------------------------------------- that it will deliver, or cause to be delivered, to each of the Significant Holders:
(i) as soon as practicable and in any event at least 30 days prior to the commencement of each fiscal year of the Company, the Company's preliminary annual operating budget and the capital budget, including consolidated and consolidating statements of budgeted cash flow and income of the Company and its Subsidiaries for each month in such fiscal year, all in reasonable detail, and as soon as practicable and in any event no later than 30 days following the commencement of each fiscal year of the Company, the Company's final annual operating budget and the capital budget;
(ii) as soon as practicable and in any event within 60 30 days after the end of each quarterly period fiscal month of the Company (other than the last quarterly period) in month of each fiscal yearquarter), furnish to THLi consolidated and consolidating statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity flow of the Company and its Subsidiaries for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, month and a consolidated and consolidating balance sheet sheets of the Company and its Subsidiaries as of at the end of such quarterly periodmonth, and (a) setting forth in each case case, in comparative form form, figures relating to figures for the corresponding period months in the annual budget (including, without limitation, the initial annual budget prepared on or date prior to the Closing on a pro forma basis giving effect to the consummation of the Acquisition), all in reasonable detail, and (b) in comparative form, figures for the corresponding months in the preceding fiscal year, all in reasonable detail detail;
(iii) as soon as practicable and in any event within 45 days after the end of each fiscal quarter of the Company, consolidated and consolidating statements of income and cash flow of the Company and its Subsidiaries for such quarter and for the period from the current fiscal year to the end of such quarter and consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such quarter, and (a) setting forth, in comparative form, figures for the corresponding quarter in the annual budget (including, without limitation, the initial annual budget prepared on or prior to the Closing on a pro forma basis giving effect to the consummation of the Acquisition), all in reasonable detail, and (b) setting forth, in comparative form, figures for the corresponding quarter in the preceding fiscal year, all in reasonable detail, and (I) if requested by the Significant Holders in connection with the determination of the Earned Amount (as defined in the Warrant), reviewed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or another independent accounting firm of nationally recognized standing and (II) certified by an authorized the chief financial officer of the CompanyCompany as being a true and correct reflection in all material respects of the financial condition and results of operation of the Company and its Subsidiaries on a consolidated and consolidating basis (determined in accordance with GAAP), subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)adjustments and except as otherwise noted therein;
(biv) The Company will, as soon as practicable and in any event within 100 120 days after the end of each fiscal year, furnish to THLi audited consolidated and consolidating statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity flow of the Company and its Subsidiaries for such year, and a audited consolidated and consolidating balance sheet sheets of the Company and its Subsidiaries as of at the end of such year, and setting forth forth, in each case case, in comparative form the form, corresponding figures from the preceding fiscal year, and corresponding figures for such year from the annual budget ( including, without limitation, the initial annual budget prepared on or prior to the Closing on a pro forma basis giving effect to the consummation of the Acquisition) (which comparisons to the annual budget need not be audited), all in reasonable detail and examined and detail, and, as to the consolidated statements, reported on upon by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or another independent public accountants accounting firm of nationally recognized national standing selected whose certification shall be without qualification as to the scope of the audit or as to GAAP, and, as to the consolidating statements, certified by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy chief financial officer of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii)Company;
(cv) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it or any of its Subsidiaries shall send to its stockholders and security holders, copies of all such reports which it or any of its officers or directors send to, and all registration statements (without exhibits) which it files, with the Commission or any securities exchange (should the Company or any of its Subsidiaries be or become public companies), copies of all press releases and other than registration statements relating made generally available by the Company or any Subsidiary to employee benefit the public concerning material developments in the business of the Company and its Subsidiaries, as the case may be, copies of communications sent to or dividend reinvestment plans, received from stockholders of the Company (in their capacity as stockholders) and copies of all such regular and periodic reports as it shall file with material communications sent to or received from the CommissionSenior Lenders or any other lender to the Company;
(dvi) The promptly upon receipt thereof, a copy of each other report (including, without limitation, each management and/or controller letter) submitted to the Company willor any of its Subsidiaries by independent accountants in connection with any annual, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management interim or special audit of the Company; andbooks of the Company or any of its Subsidiaries made by such accountants;
(evii) Until the two-year anniversary together with each delivery of financial statements required by clauses (iii) and (iv) above, an Officers' Certificate of the First Closing DateCompany (a) stating that the signers have reviewed the terms of this Agreement and the Securities and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the fiscal period covered by such financial statements and that such review has not disclosed the existence during or at the end of such fiscal period, and that the signers do not have knowledge of the existence, as at the date of the Officers' Certificate, of any condition or event which constitutes a Preferred Stock Failure Event or Preferred Stock Failure or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action, if any, the Company will, as soon as practicablehas taken or is taking or proposes to take with respect thereto, and (b) demonstrating (with computations in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (ireasonable detail) the use of Proceeds compliance by the Company and its Subsidiaries with, to the extent each remains applicable at such time, (I) the provisions of Sections 6.1 and 6.7 and (iiII) in the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness event of the Company and its Subsidiaries andsale, with reasonable promptnesslease, furnish to each Purchaser such transfer or other financial and other data disposition of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by material assets of the Company or any of its Subsidiaries., either directly or through the sale of stock or other equity of any such Subsidiary, during such fiscal period, Sections 6.5,
Appears in 1 contract
Sources: Securities Purchase Agreement (Career Education Corp)
Financial Statements and Other Reports. The Company will maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in accordance with GAAP, and will deliver to each of the Lenders:
(a) The Company will, as soon as practicable and in any event within 60 30 days after the end of each quarterly period (other than the last quarterly period) in each fiscal yearmonth, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Consolidated Subsidiaries as of at the end of such quarterly periodmonth and the related consolidated statements of operations and cash flows for such month, and for the portion of the Fiscal Year ended at the end of such month setting forth in each case in comparative form the figures for the corresponding period or date periods of the previous Fiscal Year and the figures for such month and for such portion of the Fiscal Year ended at the end of such month set forth in the preceding fiscal yearannual operating and capital expenditure budgets and cash flow forecast delivered pursuant to Section 5.01(l), all in reasonable detail and certified by an authorized the chief financial officer of the Company, as fairly presenting the financial condition and results of operations of the Company and its Consolidated Subsidiaries and as having been prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of the Company, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant adjustments and subject to clause (iii) below the absence of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)footnotes;
(b) The Company will, as soon as practicable and in any event within 100 45 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such yearfirst 3 fiscal quarters of each Fiscal Year, and a consolidated balance sheet of the Company and its Consolidated Subsidiaries as at the end of such quarter and the related consolidated statements of operations and cash flows for such fiscal quarter, and for the portion of the Fiscal Year ended at the end of such quarter setting forth in each case in comparative form the figures for the corresponding periods of the previous Fiscal Year and the figures for such quarter and for such portion of the Fiscal Year ended at the end of such quarter set forth in the annual operating and capital expenditure budgets and cash flow forecast delivered pursuant to Section 5.01(l), all in reasonable detail and certified by the chief financial officer of the Company as fairly presenting the financial condition and results of operations of the Company and its Consolidated Subsidiaries and as having been prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of the Company delivered pursuant to Section 4.04(a), subject to changes resulting from audit and normal year-end adjustments and subject to the absence of footnotes;
(c) as soon as available and in any event within 120 days after the end of each subsequent Fiscal Year, a consolidated balance sheet of the Company and its Consolidated Subsidiaries as of the end of such yearFiscal Year and the related consolidated statements of operations, stockholders' equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal yearprevious Fiscal Year and the figures for such Fiscal Year set forth in the annual operating and capital expenditure budgets and cash flow forecasts delivered pursuant to Section 5.01(l), all in each case certified (solely with respect to such consolidated statements) without qualification by Coopers & Lybr▇▇▇ ▇▇▇ or other independent public accountants of nationally recognized standing;
(i) together with each delivery of financial statements pursuant to (a), (b) and (c) above, an Officer's Certificate for the Company stating that the officers executing such certificate have reviewed the terms of this Agreement and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and examined condition of the Company and reported its Consolidated Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that such officers do not have knowledge of the existence as at the date of such Officers' Certificate, of any Default, or, if any such Default existed or exists, specifying the nature and period of existence thereof and what action the Company has taken or is taking or proposes to take with respect thereto; (ii) together with each delivery of financial statements pursuant to (b) or (c) above, a compliance certificate of the chief financial officer or treasurer of the Company (x) providing details of all transactions between the Company and any Person referred to in Section 6.08, (y) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in Sections 6.11 through 6.19, and (z) if not specified in the financial statements delivered pursuant to (b) or (c) above, as the case may be, specifying the aggregate amount of interest paid or accrued and the aggregate amount of depreciation and amortization charged, during such accounting period; and (iii) together with each delivery of financial statements pursuant to (c) above, a statement setting forth in reasonable detail the computation of Excess Cash Flow, if any, for such Fiscal Year, certified by the chief financial officer of the Company as having been prepared from such financial statements in accordance with this Agreement;
(e) together with each delivery of financial statements pursuant to (c) above, a written statement by the independent public accountants giving the report thereon (i) stating that their audit examination has included a review of the terms of this Agreement as it relates to accounting matters, (ii) stating whether, in connection with their audit examination, any Default has come to their attention, and if such a condition or event has come to their attention, specifying the nature and period of existence thereof, and (iii) stating that based on their audit examination nothing has come to their attention which causes them to believe that the information contained in the certificates delivered therewith pursuant to (d) above is not correct and that the matters set forth in the compliance certificate delivered therewith pursuant to clause -43- 49 (ii) of (d) above for the applicable Fiscal Year are not stated in accordance with the terms of this Agreement;
(f) promptly upon receipt thereof, copies of all reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of recognized national standing selected the financial statements of the Company or any of its Subsidiaries made by such accountants, including the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by the Company; providedCompany to its security holders, however, that delivery pursuant (ii) all regular and periodic reports and all registration statements and prospectuses filed by the Company with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to clause any of its functions and (iii) below all press releases and other statements made available generally by the Company to the public concerning material developments in the business of the Company or any Subsidiary;
(h) promptly upon any officer of the Company obtaining knowledge (i) of the existence of any default with respect to any Debt of the Company or any Subsidiary, that singly or that when aggregated with other Debt in default has an aggregate outstanding principal amount greater than or equal to $250,000, or that the holder of any such Debt has given any notice or taken any other action with respect to a claimed default thereunder, (ii) of any change in the Company's certified accountant or any resignation, or decision not to stand for re-election, by any member of the Company's board of directors, (iii) that any Person has given any notice to the Company or taken any other action with respect to a claimed default under any material agreement or instrument (other than the Financing Documents) to which the Company or any Subsidiary is a party or by which any of their material assets are bound or (iv) of the institution of any litigation or arbitration involving an alleged liability of the Company or any Subsidiary equal to or greater than $250,000, or any adverse determination in any litigation or arbitration involving a potential liability of the Company or any Subsidiary equal to or greater than $250,000, an Officers' Certificate of the Company 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 (including any Default), event or condition, and what action the Company has taken, is taking or proposes to take with respect thereto;
(i) if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any "reportable event" (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the Annual Report on Form 10-K notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a certificate of the chief financial officer or the chief accounting officer of the Company for setting forth details as to such fiscal year filed with occurrence and action, if any, which the Commission shall be deemed Company or applicable member of the ERISA Group is required or proposes to satisfy the requirements of this clause (ii)take;
(cj) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statementsany material reports or notices related to taxes and any other material reports or notices received by the Company from, proxy statementsor filed by the Company with, notices and reports as it shall send to its stockholders and copies any Federal, state or local governmental agency or body regulating the activities of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the CommissionCompany;
(dk) The Company willwithin 30 days prior to the conclusion of each Fiscal Year, promptly after such package becomes availablethe Company's annual operating and capital expenditure budgets and cash flow forecast for the following Fiscal Year presented on a monthly basis, furnish which shall be in a format reasonably consistent with projections, budgets and forecasts theretofore provided to THLi copies the Lenders;
(l) together with each Notice of all financial reporting packages prepared for management Revolving Credit Loan requesting a Working Capital Loan and each Letter of Credit Request, and on the first Business Day of each month, a Borrowing Base Certificate as of the Company; andclose of business of the immediately preceding Business Day;
(em) Until within two Business Days after any request therefor, such information in such detail concerning the two-year anniversary amount, composition and manner of calculation of the First Closing Date, Borrowing Base as the Company will, as soon as practicable, and in any event Agent may reasonably request;
(n) within 5 ten days after the end of each month, furnish so long as there shall be Working Capital Loans outstanding in an aggregate principal amount greater than or equal to THLi $1,000,000, a report, in form and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant substance acceptable to the Note Agreement; and
(g) The Company will promptly furnish Agent, as to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness all accounts receivable of the Company and its Subsidiaries outstanding as of the last day of such month (a "RECEIVABLES REPORT"), which shall set forth in summary form an aging of such receivables and which shall, if the Agent so requests, include a detailed aged trial balance of all such receivables specifying the names, face amount and dates of all invoices for each account debtor obligated on a receivable so listed; upon the reasonable request of the Agent and to the extent available, each Receivables Report shall be accompanied by copies of customer statements, and all documents, including repayment histories and present status reports, relating to the receivables so scheduled and such other matters and information relating to the status of any receivables as the Agent shall reasonably request;
(o) together with the next delivery of a Receivables Report after the Company becomes aware thereof, notice of any dispute between any account debtor and the Company or the applicable Subsidiary with respect to any amounts due and owing in excess of $100,000 in the aggregate, with an explanation in reasonable detail of the reason for the dispute, all claims related thereto and the amount in controversy;
(q) together with each delivery of financial statements pursuant to (a), (b) and (c) above, a management discussion of the comparison between budget and actual performance and of performance versus performance for the prior year in form and in substance satisfactory to the Agent in its sole good faith discretion; and,
(r) with reasonable promptness, furnish to each Purchaser such other financial information and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by with respect to the Company or any of its SubsidiariesSubsidiary, as from time to time may be reasonably requested by the Agent.
Appears in 1 contract
Financial Statements and Other Reports. (a) The Company willwill maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Company will deliver to each Lender and the Agent:
(i) as soon as practicable available and in any event within 60 45 days after the end of each quarterly period month ending after the Closing Date, (other than 1) the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheets of the Company and its Subsidiaries and the consolidating balance sheets of the Company and its major divisions, in each case as at the end of such month, (2) the related summary statements of income, stockholders' equity and cash flows, in each case for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding periods of the previous fiscal year and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.1(x), all certified by the chief financial officer or the controller of the Company that they fairly present in all material respects the financial condition of such entities as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, and (3) a conference call with senior management to discuss the operations of the Company and its Subsidiaries for such monthly period or date and for the period from the beginning of the then current fiscal year to the end of such monthly period;
(ii) as soon as available and in any event within 45 days after the preceding end of each of the first three fiscal quarters of each fiscal year, (1) the consolidated balance sheets of the Company and its Subsidiaries and the consolidating balance sheets of the Company and its major divisions as at the end of such fiscal quarter, (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.1(x), all in reasonable detail and certified by an authorized the chief financial officer or the controller of the CompanyCompany that they fairly present in all material respects the financial condition of the Company and its Subsidiaries at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause and (iii3) below of a copy of the Quarterly Report company's quarterly report on Form 10-Q for such quarterly period, and (4) only if the Company does not file quarterly reports on Form 10-Q with the Commission, a narrative report describing the operations of the Company and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such quarterly fiscal quarter and for the period filed with from the Commission shall be deemed beginning of the then current fiscal year to satisfy the requirements end of this clause (i)such fiscal quarter;
(biii) The Company will, as soon as practicable available and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of (1) the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheets of the Company and its Subsidiaries for such year, and a consolidated the consolidating balance sheet sheets of the Company and its Subsidiaries major divisions as of at the end of such fiscal year, (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year and the corresponding figures from the preceding consolidated plan and financial forecast for the current fiscal yearyear delivered pursuant to Section 5.1(x) for the fiscal year covered by such financial statements, all in reasonable detail and examined certified by the chief financial officer or the controller of the Company that they fairly present in all material respects the financial condition of the Company and reported its Subsidiaries, at the dates and the results of their operations and their cash flows for the periods indicated, (3) the Company's annual report on by Form 10-K for such year, (4) only if the Company does not file annual reports on Form 10-K with the Commission, a narrative report describing the operations of the Company and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in annual reports on Form 10-K) prepared for such fiscal year, and (5) in the case of such consolidated financial statements, a report thereon of independent certified public accountants of recognized national standing selected standing, which report shall be un- qualified as to scope of audit, shall express no doubts about the ability of the Company and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iv) together with each delivery of financial statements pursuant to Sections 5.1(ii) and (iii) above, (a) an Officers' Certificate of the Company stating that the signers have reviewed the terms of this Agreement and the Notes and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as of the date of the Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance (as determined in accordance with GAAP) during and at the end of such accounting periods with the restrictions contained in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.9 and 6.14;
(v) together with each delivery of consolidated financial statements pursuant to Section (iii) above, a written statement by the independent certified public accountants giving the report thereon (a) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default or Potential Event of Default that relates to accounting matters has come to their attention and, if any such condition or event has come to their attention, specifying the nature and period of existence thereof; provided that such accountants shall not be liable by reason of any -------- failure to obtain knowledge of any such Event of Default or Potential Event of Default that would not be disclosed in the course of their audit examination, and (b) stating that based on their audit examination nothing has come to their attention that causes them to believe that the information contained in the certificates delivered therewith is not correct;
(vi) promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all reports in final form (other than reports of a routine or ministerial nature which are not material) submitted to the Company by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of the Company and its Subsidiaries made by such accountants, including, without limitation, any comment letter submitted by such accountants to management in connection with their annual audit;
(vii) promptly upon the sending or filing thereof, copies of (a) all financial statements, reports, notices and proxy statements sent or made available generally by the Company to their public security holders or by any Subsidiary of the Company to its public security holders other than the Company or another Subsidiary of the Company, (b) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental authority (other than reports of a routine or ministerial nature which are not material), and (c) all press releases and other statements made available generally by the Company or any of its Subsidiaries to the public concerning material developments in the business of the Company or any of its Subsidiaries;
(viii) promptly upon any executive officer of the Company obtaining knowledge (a) of any condition or event which constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender or Agent has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement, (b) that any Person has given any notice to the Company or any Subsidiary of the Company or taken any other action with respect to a claimed default or event or condition which might result in an Event of Default referred to in Section 7.2, (c) of any condition or event which would be required to be disclosed in a current report filed with the Commission on Form 8-K whether or not the Company is required to file such reports under the Exchange Act, or (d) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officers' Certificate 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 Default, Potential Event of Default, event or condition, and what action the Company has taken, is taking and proposes to take with respect thereto;
(ix) promptly upon any executive officer of the Company obtaining knowledge of (X) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries (collectively, "Proceedings") not previously disclosed in writing by the Company to Lenders or (Y) any material development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the Transactions; written notice thereof together with such other information as may be reasonably available to the Company or any of its Subsidiaries to enable Lenders and their counsel to evaluate such matters;
(x) as soon as practicable but in any event no later than 40 days following the first day of each fiscal year a forecast for each of the next succeeding twelve months of the consolidated balance sheet and the consolidated statements of income, cash flow and cash position of the Company and its Subsidiaries and the consolidating balance sheet and the consolidating statements of income, cash flow and cash position of the Company and its major divisions, together with an outline of the major assumptions upon which the forecast is based; provided, however, -------- ------- that for fiscal 1998 such forecast may be for the four fiscal quarters. Together with each delivery of financial statements pursuant to clause Sections 5.1(ii) and (iii) below of above, the Company shall deliver a copy comparison of the Annual Report on Form 10-K of current year to date financial results against the Company for such fiscal year filed with the Commission shall budget required to be deemed submitted pursuant to satisfy the requirements of this clause (ii)Section;
(cxi) The Company will, promptly upon transmission thereof, furnish to not later than the last day of each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management fiscal year of the Company; and
(e) Until , a report in form and substance satisfactory to the two-year anniversary Agent outlining all material insurance coverage maintained as of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end date of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds such report by the Company and its Subsidiaries and (ii) all material insurance coverage planned to be maintained by such Persons in the Company's compliance with the Retail Plan and the E-Commerce Plansubsequent fiscal year;
(fxii) The Company will in writing, promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness upon an executive officer of the Company and obtaining knowledge that the Company or any of its Subsidiaries andhas received notice or otherwise learned of any claim, demand, action, event, condition, report or investigation indicating any potential or actual liability arising in connection with reasonable promptness, furnish to each Purchaser such other financial and other data (x) the non-compliance with or violation of the requirements of any Environmental Law which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (y) the release or threatened release of any Hazardous Material, substance or constituent into the environment which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or which release the Company and or any of its Subsidiaries as such Purchaser may reasonably requestwould have a duty to report to a Tribunal under an Environmental Law, including, but not limited to, operating financial information for each retail store owned or operated by (z) the existence of any Environmental Lien on any properties or assets of the Company or any of its Subsidiaries;
(xiii) promptly after the availability thereof, copies of all material amendments to the certificate of incorporation or by-laws of the Company or any of its Subsidiaries; and
(xiv) promptly upon any Person becoming a Subsidiary of the Company, a written notice setting forth with respect to such Person (a) the date on which such Person became a Subsidiary of the Company and (b) all of the data required to be set forth in Schedule B with respect ---------- to all Subsidiaries of the Company;
(xv) with reasonable promptness, such other information and data with respect to the Company or any of its Subsidiaries or any of their respective property, business or assets as from time to time may be reasonably requested by any Lender; provided -------- that no information or data shall be required to be delivered hereunder or under any other provision of this Agreement if it would violate any applicable attorney-client or accountant-client privilege.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (T Sf Communications Corp)
Financial Statements and Other Reports. (ai) The Company it will, as soon as practicable and in any event within 60 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' stockholders equity of the Company Corporation and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company Corporation and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the CompanyCorporation, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company Corporation for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(bii) The Company it will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company Corporation and its Subsidiaries for such year, and a consolidated balance sheet of the Company Corporation and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the CompanyCorporation; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company Corporation for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(ciii) The Company it will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices notices, and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(eiv) Until the two-year anniversary of the First Closing Date, the Company it will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company Corporation and its Subsidiaries as such Together with each delivery of financial statements required by clauses (i) and (ii) above, the Corporation will deliver to Purchaser may reasonably request, including, but not limited to, operating a certificate of an authorized financial information for each retail store owned or operated officer of the Corporation regarding compliance by the Company Corporation with the covenants set forth in Sections 6.6., 6.7, and 6.8. At such other time or times that the Corporation delivers a compliance certificate to any other holder of its SubsidiariesFunded Debt, the Corporation will deliver such certificate, and any supporting detail, to the Purchaser.
Appears in 1 contract
Sources: Note Purchase Agreement (Corrections Corporation of America)
Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent (awith, in the case of any of the following delivered in tangible form, a sufficient number of copies for each Lender):
(i) The Company will, as soon as practicable Quarterly Financial Statements: within five Business Days after the date on which the Borrower is required to file a quarterly report with the Securities and Exchange Commission with respect to any Fiscal Quarter ending after the Effective Date (but in any event within 60 not later than 50 days after the end of each quarterly period (other than such Fiscal Quarter), the last quarterly period) in each fiscal year, furnish to THLi unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of consolidated net income income, stockholders' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company Borrower and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then then-current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal yearcorresponding periods of the previous Fiscal Year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected certified by the Companychief financial officer of the Borrower as fairly presenting, in all material respects, the financial condition of the Borrower and its Subsidiaries as at the date indicated and the results of their operations and cash flows for the periods indicated in conformity with GAAP, subject to changes resulting from audit and normal year-end 40 $500,000,000 THREE YEAR CREDIT AGREEMENT adjustments; provided, however, provided that delivery pursuant to clause (iii) below by the Borrower of a copy of the Annual Report quarterly report on Form 10-K of the Company Q for such fiscal year filed with the Commission Fiscal Quarter shall be deemed to satisfy the requirements sufficient for purposes of this clause (ii);
(ci) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports so long as it shall send to its stockholders and copies of contains all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Planforegoing information;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Assurant Inc)
Financial Statements and Other Reports. Company will prepare consolidated financial statements in conformity with GAAP. Company will deliver to Lenders the items referred to in subsections 5.1A, 5.1B, 5.1C and 5.1G below and will otherwise deliver to Administrative Agent (a) The Company willwith sufficient copies for each Lender), all other of the following:
A. as soon as practicable and in any event within 60 55 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning first three Fiscal Quarters of the then current fiscal year to the end each Fiscal Year, a copy of such Company's quarterly periodreport on Form 10-Q setting forth, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form form, the corresponding figures for the corresponding period or date in Fiscal Quarter of the preceding fiscal yearprevious Fiscal Year, all in reasonable detail and certified by an authorized a Responsible Officer of Company as fairly presenting the financial officer condition of Company and its Subsidiaries as at the Companydates indicated and the results of their operations for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)adjustment;
(b) The Company will, B. as soon as practicable and in any event within 100 days after the end of each fiscal yearFiscal Year, furnish to THLi statements a copy of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, Company's annual report on Form 10-K setting forth in each case in comparative form the corresponding consolidated figures from for the preceding fiscal yearprevious Fiscal Year, all in reasonable detail and examined and reported accompanied by a report on by the financial information contained in the annual report on Form 10-K of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other independent certified public accountants of recognized national standing selected by Company, which report shall state that such consolidated financial statements present fairly the Company; provided, however, financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise stated therein) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
C. together with each delivery of the reports of Company and its Subsidiaries pursuant to clause subsections 5.1A and 5.1B above, a Compliance Certificate for the Fiscal Quarter or Fiscal Year, as applicable, executed by a Responsible Officer of Company (iii1) below of a copy stating that the signer does not have knowledge of the Annual Report on Form 10-K existence as at the date of the Compliance Certificate, of any condition or event that constitutes an Event of Default, Cross Default or Potential Event of Default or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Company for has taken, is taking and proposes to take with respect thereto, and (2) demonstrating in reasonable detail compliance at the end of such fiscal year filed accounting periods with the Commission shall be deemed to satisfy the requirements of this clause restrictions contained in subsections 6.1 and 6.2 (iias set forth in EXHIBIT II);
(c) The Company will, D. promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after Business Days after) any Responsible Officer of Company obtaining knowledge of any condition or event that constitutes an Event of Default, Cross Default or Potential Event of Default under this Agreement, an Officer's Certificate specifying the end nature and period of each monthexistence of any such 50 condition or event and what action Company has taken, furnish is taking or proposes to THLi take with respect thereto;
E. promptly upon (and GECC detailed in any event within 5 Business Days after) any Responsible Officer of Company obtaining knowledge of the institution of any action, suit, proceeding, governmental investigation or arbitration against or affecting Company that has not previously been disclosed by Company to Lenders and that would reasonably be expected to have a Material Adverse Effect, Company shall promptly give notice thereof to Lenders and provide such other information as may be reasonably available to it to enable Lenders and their counsel to evaluate such matters;
F. promptly upon (and in any event within 5 Business Days after) any Responsible Officer of Company obtaining knowledge of the occurrence of any Termination Event in connection with any Pension Plan or any trust created thereunder, for which the amount involved exceeds $25,000,000, a written notice specifying the nature thereof, what action Company has taken, is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service or the PBGC with respect thereto;
G. promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by Company to its security holders or by any other information THLi and GECC may reasonably request, relating to (i) the use Subsidiary of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant subject to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness reporting requirements of the Exchange Act to its security holders other than Company or another Subsidiary, of all regular and its Subsidiaries andperiodic reports and all registration statements and prospectuses, with reasonable promptnessif any, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated filed by the Company or any of its SubsidiariesSubsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions; and
H. with reasonable promptness, such other information with respect to compliance by Company with the terms of this Agreement as from time to time may be reasonably requested by Administrative Agent acting at the direction of Requisite Lenders.
Appears in 1 contract
Financial Statements and Other Reports. NCFC and the Company -------------------------------------- will each maintain a system of accounting established and administered in accordance with sound business practices such as to permit the preparation of financial statements in accordance with GAAP and furnish or cause to be furnished to each Bank:
(a) The Company will, as soon as practicable available and in any event within 60 30 days after the end of each quarterly period (other than calendar month, a copy of the last quarterly period) in each fiscal year, furnish to THLi unaudited financial statements of NCFC (on a consolidated net income and a consolidating basis) and the Company as at the end of such month, consisting of at least a balance sheet and the related statements of income, shareholders' equity and cash flows flow of NCFC and a statement of changes in consolidated stockholders' equity of the Company for such month and its Subsidiaries for the period from the beginning of the then current fiscal year of NCFC and the Company to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth in each case in comparative form the figures for the corresponding date or period or date in of the preceding previous fiscal year, all in reasonable detail detail, and certified by an authorized the chief financial officer of NCFC as being complete and correct in all material respects and fairly presenting NCFC's and the Company's financial condition and results of operations, subject to changes resulting from normal year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable available and in any event within 100 90 days after the end of each fiscal year, furnish to THLi financial statements of NCFC (on a consolidated net income and cash flows and a statement consolidating basis) and the Company, consisting of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and at least a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such yearfiscal year and the related statement of income, shareholders' equity and cash flow for such fiscal year of NCFC and the Company, setting forth in each case in comparative form the corresponding figures from as of the preceding end of and for the previous fiscal year, all in reasonable detail and examined and reported on detail, accompanied by a report thereon of the accounting firm of KMP&G Peat Marwick or other independent certified public accountants of recognized national standing selected by NCFC and reasonably satisfactory to the Agent, which report shall be unqualified and shall state that such financial statements present fairly the financial condition of NCFC and the Company as at the date indicated and the results of their operations for the periods indicated in conformity with GAAP applied on a basis consistent with prior fiscal years (except as otherwise required by GAAP and stated therein) and that the examination of such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, accompanied by a letter from such accounting firm addressed to the Banks acknowledging that the Banks are extending credit in reliance on such statements and authorizing such reliance, and also by any management letters to the Company or its board of directors furnished by such accounting firm in connection with its audit of the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii)'s consolidated financial statements;
(c) The with the financial statements furnished pursuant to Section 4.01(a) for each calendar month:
(i) a certificate signed by the chief financial officer of the Company willstating that to the best of his knowledge, promptly upon transmission after due inquiry, there exists no Event of Default or Unmatured Event of Default, or, if such Event of Default or Unmatured Event of Default exists, stating the nature thereof, furnish to each Purchaser copies the period of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plansexistence thereof, and all what action the Company proposes to take with respect thereto;
(ii) a properly completed Compliance/Borrowing Base Certificate as of the end of such regular month;
(iii) a servicing/delinquency report showing with respect to the Eligible Servicing Portfolio: the number of Mortgage Notes (including Mortgage Notes backing Mortgage-backed Securities) included therein, the total outstanding principal amount thereof, Investor type, weighted average coupon, delinquency status and periodic reports foreclosure experience; and
(iv) such additional information concerning the Eligible Servicing Portfolio and such selective detail by segments and categories thereof as it shall file with the Commission;may from time to time be reasonably requested by any Bank.
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 five days after the end of each (i) week (for the purposes of this paragraph (d), each week shall be deemed to end on a Friday), with respect to the Agent, and (ii) month, furnish with respect to THLi all the Banks, an inventory/pipeline position report showing with respect to each Take-Out Commitment: the type, Investor type, expiration date, price, interest rate and/or required yield, the original amount or aggregate amount thereof and GECC detailed reportsthe portions thereof that have been utilized and the portions thereof that remain available, future contracts, hedged positions, repurchase agreements and profit and loss, indicating the number of Mortgage Notes owned by the Company, the aggregate principal balance thereof and the warehouse and pipeline balances (for purposes of this clause (d), "inventory" means Mortgage Notes owned by the Company which have been fully funded or with respect to which the Company has paid the full purchase price and "pipeline" means the Mortgage Notes (or applications for Mortgages) as to which the Company has made either firm or floating price quotes to purchase or fund but which have not been purchased or funded by the Company), together with copies of any other information THLi and GECC new Take-Out Commitments issued to or entered into by the Company during such week or month, as the case may reasonably requestbe;
(e) within five Business Days after any officer of the Company has knowledge of their occurrence, relating to notice of each of the following events:
(i) the use commencement of Proceeds any action, suit, proceeding or arbitration against NCFC or any Subsidiary of NCFC, or any material development in any action, suit, proceeding or arbitration pending or threatened against NCFC or any such Subsidiary, (A) in which the aggregate uninsured amount claimed is more than $50,000, (B) which would, if decided in a manner adverse to NCFC or such Subsidiary, constitute a Material Adverse Event or (C) which relates to this Agreement or any document executed pursuant hereto or any transaction financed or to be financed in whole or in part directly or indirectly with the proceeds of the loans made pursuant hereto;
(ii) any Event of Default or Unmatured Event of Default and what actions, if any, the Company is taking or contemplates taking in regard thereto;
(iii) any notice from any Investor that it intends to put the Company on probation or that it will cease purchasing Mortgage Loans from the Company or that it will cease permitting the Company to service Mortgage Notes owned, sold or guaranteed by it; and
(iv) notice of any other Material Adverse Event, including any material adverse development which occurs in any litigation, arbitration or governmental investigation or proceeding previously disclosed by the Company and its Subsidiaries and (ii) to the Company's compliance with the Retail Plan and the E-Commerce PlanBanks;
(f) The prior to the end of each fiscal year, final annual budgets, forecasts and pro-forma cash flow projections developed by NCFC and the Company will promptly furnish to THLi for its next succeeding fiscal year;
(g) as soon as available, copies of all financial statements, reports and returns sent to NCFC's stockholders and copies of all regular, periodic, or special reports which the Company or NCFC is or may be required to file with any reports furnished to GECC pursuant to the Note Agreementgovernmental department, bureau, commission or agency; and
(gh) The Company will promptly furnish from time to THLi copies time, such other information regarding the business, operations, affairs and financial condition of any compliance certificates furnished to lenders in respect of indebtedness of NCFC and the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of as the Company and its Subsidiaries as such Purchaser Bank may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Financial Statements and Other Reports. (ai) The Company will, as soon as practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi the Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(bii) The Company it will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi the Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(ciii) The Company it will, promptly upon transmission thereof, furnish to each the Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating elating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(div) The Company it will, promptly after such package becomes available, furnish to THLi the Purchaser copies of all financial reporting packages prepared for management of the Company; and
(ev) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company it will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi Purchaser copies of any compliance certificates furnished to lenders in respect of indebtedness Indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each the Purchaser such other financial and other data of the Company and its Subsidiaries as such the Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries. Together with each delivery of financial statements required by clauses (i) and (ii) above, the Company will deliver to the Purchaser a certificate of the Chief Financial Officer, Treasurer or other financial officer of the Company regarding compliance by the Company with the covenants set forth in Section 6.2.
Appears in 1 contract
Financial Statements and Other Reports. Borrower will deliver to Administrative Agent and Lenders:
(a1) The Company willDuring Stage 1, in the event that there has been a funding of any Loans, as soon as practicable available and in any event within 60 thirty (30) days after the end of each quarterly period (other than month ending after the last quarterly period) in each fiscal yearClosing Date, furnish to THLi statements the consolidated balance sheet of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries as at the end of such month and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such month and for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearmonth, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, to the extent prepared on a monthly
(2) as soon as available and in any event within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail detail, together with (1) a Financial Officer Certification, (2) a Narrative Report with respect thereto and examined (3) a revised Schedule 4.1 (if necessary) reflecting all changes in the organizational structure and reported on capital structure of Company and its Subsidiaries since the delivery of the last quarterly financial information, which revised Schedule 4.1 will be deemed to amend the then-existing Schedule 4.1 for all purposes under this Agreement;
(3) as soon as available and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; (ii) a report thereon of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or other independent certified public accountants of recognized national standing selected by the Company; providedCompany and in form and substance satisfactory to Administrative Agent, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission which report shall be deemed unqualified as to satisfy the requirements going concern and scope of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of audit and shall state that such consolidated financial statements fairly present in all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Datematerial respects, the Company will, as soon as practicable, and in any event within 5 days after the end consolidated financial position of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably requestfinancial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards) together with a written statement by such independent certified public accountants stating (1) that their audit examination has included a review of the terms of the Credit Documents, (2) whether, in connection therewith, any condition or event that constitutes a Default or an Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period of existence thereof, and (3) that nothing has come to their attention that causes them to believe that the information contained in any Compliance Certificate is not correct or that the matters set forth in such Compliance Certificate are not stated in accordance with the terms hereof and (iii) a revised Schedule 4.1 (if necessary) reflecting all changes in the organizational structure and capital structure of Company and its Subsidiaries since the delivery of the last quarterly financial information, which revised Schedule 4.1 will be deemed to amend the then-existing Schedule 4.1 for all purposes under this Agreement;
(4) together with each delivery of financial statements of Company and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;
(5) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Company and its Subsidiaries delivered pursuant to Sections 5.1(a), 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent;
(6) promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Company to its security holders acting in such capacity or by any Subsidiary of Company to its security holders other than Company or another Subsidiary of Company, (ii) all regular and periodic reports (but not including, but not limited tounless requested by Administrative Agent, operating financial information for each retail store owned routine reports regularly filed with the FCC and state commissions with jurisdiction over telecommunications matters) and all registration statements (other than on Form S-8 or operated a similar form) and prospectuses, if any, filed by Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority, and (iii) all press releases and other statements made available generally by Company or any of its Subsidiaries to the public concerning material developments in the business of Company or any of its Subsidiaries.;
(7) promptly upon any officer of Borrower or Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Borrower or Company with respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); (iii) of any condition or event of a type required to be disclosed in a current report on Form 8-K of the Securities and Exchange Commission; or (iv) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of an Authorized Officer specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Company has taken, is taking and proposes to take with respect thereto;
(8) promptly upon any officer of Borrower or Company obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by Borrower or Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Allegiance Telecom Inc)
Financial Statements and Other Reports. The Guarantor will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Guarantor will deliver to the Buyer:
(ai) The Company willat any time during which any Notes are outstanding, as soon as practicable available and in any event within 60 25 days after the end of each quarterly period month ending after the First Closing Date, (other than 1) the last quarterly periodconsolidated balance sheets of the Guarantor and its Subsidiaries, as at the end of such month, (2) the related consolidated statements of operations and stockholders' equity, in each fiscal year, furnish to THLi statements of consolidated net income case for such month and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly periodmonth, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 4.1(x), all in reasonable detail and certified by the Guarantor on its behalf by its chief financial officer (in his capacity as such) that such statements fairly present the financial condition of such entities as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, and a (3) the narrative report, if any, describing the operations of the Guarantor and its Subsidiaries prepared for presentation to the Guarantor's Senior Officers for such monthly period and for the period from the beginning of the then current fiscal year to the end of such monthly period;
(ii) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year and within 90 days after the end of the fourth fiscal quarter of each fiscal year, (1) the consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarterly periodfiscal quarter, (2) the related consolidated statements of operations, stockholders' equity and cash flows for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding previous fiscal yearyear and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 4.1(x), all in reasonable detail and certified by an authorized the Guarantor on its behalf by its chief financial officer (in his capacity as such) that such statements fairly present the consolidated financial condition of the CompanyGuarantor and its Subsidiaries, as at the dates indicated and the results of operations and cash flows of the Guarantor and its Subsidiaries for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause (iii3) below of a copy of the Quarterly Report Guarantor's quarterly report on Form 10-Q of the Company for such quarterly period filed period, and (4) only if the Guarantor does not file quarterly reports on Form 10-Q with the Commission shall be deemed to satisfy Commission, a narrative report describing the operations of the Guarantor and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of this clause (i)the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter;
(biii) The Company will, as soon as practicable available and in any event within 100 90 days after the end of each fiscal year, furnish to THLi statements of (1) the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company Guarantor and its Subsidiaries as of at the end of such fiscal year, (2) the related consolidated and consolidating statements of operations, stockholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year and the corresponding figures from the preceding consolidated plan and financial forecast for the current fiscal yearyear delivered pursuant to Section 4.1(i) for the fiscal year covered by such financial statements, all in reasonable detail and examined certified by the Guarantor on its behalf by its chief financial officer (in his capacity as such) that such statements fairly present the consolidated financial condition of the Guarantor and reported its Subsidiaries, as at the dates indicated and the results of operations and cash flows of the Guarantor and its Subsidiaries for the periods indicated, (3) the Guarantor's annual report on by Form 10-K for such year, (4) only if the Guarantor does not file annual reports on Form 10-K with the Commission, a narrative report describing the operations of the Guarantor and its Subsidiaries (in the form of management's discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act and rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such fiscal year, and (5) a report thereon of independent certified public accountants of recognized national standing selected standing, which report shall be unqualified as to scope of audit, shall express no doubts about the ability of the Guarantor and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present the consolidated financial position of the Guarantor and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by the Company; provided, however, that such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iv) together with each delivery of financial statements pursuant to clause Sections (ii) and (iii) below of above, (a) a copy Financial Statements Certificate of the Annual Report on Form 10-K Guarantor stating that the signers have reviewed the terms of this Agreement and the Notes and the Publishing Notes and have made, or caused to be made under their supervision, a review in reasonable detail of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices transactions and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness condition of the Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as at the date of the Financial Statements Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance (as determined in accordance with GAAP) during and at the end of such accounting periods with the restrictions contained in Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, and 5.13;
(v) together with each delivery of consolidated financial statements pursuant to Section (iii) above, a written statement by the independent certified public accountants giving the report thereon (a) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default or Potential Event of Default that relates to accounting matters has come to their attention and, if any such condition or event has come to their attention, specifying the nature and period of existence thereof; provided that such accountants shall not be liable by reason of any failure to obtain knowledge of any such Event of Default or Potential Event of Default that would not be disclosed in the course of their audit examination, and (b) stating that based on their audit examination nothing has come to their attention that causes them to believe that the information contained in the certificates delivered therewith is not correct;
(vi) promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all reports (other than reports of a routine or ministerial nature which are not material) submitted to the Company, Publishing or the Guarantor or any of their respective Subsidiaries by independent certified public accountants in connection with reasonable promptnesseach annual, furnish to each Purchaser such other financial and other data interim or special audit of the Company and financial statements of the Guarantor or any of its Subsidiaries as made by such Purchaser may reasonably requestaccountants, including, but not limited towithout limitation, operating any comment letter submitted by such accountants to management in connection with their annual audit;
(vii) promptly upon the sending or filing thereof, copies of (a) all financial information for each retail store owned statements, reports, notices and proxy statements sent or operated made available generally by the Company Guarantor to its security holders or by any Subsidiary of the Guarantor to its security holders other than the Guarantor or another Subsidiary of the Guarantor, (b) all other reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Guarantor or any of its Subsidiaries with any securities exchange or with the Commission or any governmental authority (other than reports of a routine or ministerial nature which are not material), and (c) all press releases and other statements made available generally by the Guarantor or any of its Subsidiaries to the public concerning material developments in the business of the Company, the Guarantor or any of their respective Subsidiaries;
(viii) promptly upon any Senior Officer's obtaining knowledge (a) of any condition or event which constitutes an Event of Default or Potential Event of Default, or becoming aware that the Buyer has given any notice or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement or the Notes, (b) that any person has given any notice to the Guarantor or any of its Subsidiaries or taken any other action with respect to a claimed default or event or condition which might result in an Event of Default or Potential Event of Default, (c) of any condition or event which would be required to be disclosed in a Current Report filed with the Commission on Form 8-K whether or not the Guarantor is required to file such reports under the Exchange Act, or (d) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect in respect of the Guarantor or any of its Subsidiaries, a certificate of the Guarantor executed by two Senior Officers (in their capacity as such) 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 Default, event or condition, and what action the Company, Publishing or the Guarantor has taken, is taking and proposes to take with respect thereto;
(ix) promptly upon any Senior Officer's obtaining knowledge of (X) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting the Guarantor or any of its Subsidiaries or any property of the Guarantor or any of its Subsidiaries (collectively, "Proceedings") not previously disclosed in writing by the Guarantor to the Buyer or (Y) any material development in any Proceeding that, in any case:
(1) if adversely determined, could reasonably be expected to have a Material Adverse Effect on either the Company or the Guarantor and its Subsidiaries, taken as a whole; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement, the Security Agreement, the Notes or the Publishing Notes; written notice thereof together with such other information as may be reasonably available to the Guarantor or any of its Subsidiaries to enable the Buyer and its counsel to evaluate such matters;
(x) as soon as practicable but in any event no later than 40 days following the first day of each fiscal year a forecast for each of the next succeeding twelve months of the consolidated balance sheet and the consolidated statements of income, cash flow and cash position of the Guarantor and its Subsidiaries, together with an outline of the major assumptions upon which the forecast is based. Together with each delivery of financial statements pursuant to Sections 4.1(ii) and (iii) above, the Guarantor shall deliver a comparison of the current year to date financial results against the budget required to be submitted pursuant to this Section;
(xi) not later than the last day of each fiscal year of the Guarantor, a report in form and substance satisfactory to GPH outlining all material insurance coverage maintained as of the date of such report by the Guarantor and its Subsidiaries and all material insurance coverage planned to be maintained by such persons in the subsequent fiscal year; and
(xii) with reasonable promptness, such other information and data with respect to the Guarantor or any of its Subsidiaries or any of their respective property, business or assets as from time to time may be reasonably requested by GPH.
Appears in 1 contract
Sources: Note Purchase Agreement (Golden Books Family Entertainment Inc)
Financial Statements and Other Reports. Company will deliver to Administrative Agent for further distribution (and which Administrative Agent shall promptly distribute) to each Lender, in form and detail reasonably satisfactory to Administrative Agent:
(a) The Company will, as soon as practicable available and in any event within 60 twenty-five (25) days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the first two (2) months of each Fiscal Quarter ending after the Closing Date (such reports, the "MONTHLY REPORTS"), (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such month and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such month and (ii) for any Monthly Reports delivered after the first anniversary of the Closing Date, for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth beginning with the monthly financial statements for fiscal year 2005, in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding fiscal yearprevious Fiscal Year, all in reasonable detail detail, together with a CFO Certification and certified by an authorized financial officer MD&A with respect to each of the Company, subject to changes resulting from year-end adjustmentsforegoing; provided, however, that delivery during any period in which the Leverage Ratio as of the last day of the immediately preceding Fiscal Quarter (determined for any such period by reference to the CREDIT AND GUARANTY AGREEMENT EXECUTION 824610-New York Server 7A most recent Compliance Certificate delivered pursuant to clause (iiiSection 5.1(d) below of a copy of calculating the Quarterly Report on Form 10-Q of the Leverage Ratio) is 4.50:1.00 or less, Company shall not be required to deliver any Monthly Reports required by this Section 5.1(a) for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)period;
(b) The Company will, as soon as practicable available and in any event within 100 forty-five (45) days after the end of the first three (3) Fiscal Quarters of each fiscal yearFiscal Year, furnish to THLi the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of consolidated net income income, stockholders' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, Fiscal Quarter and a consolidated balance sheet for the period from the beginning of the Company and its Subsidiaries as of then current Fiscal Year to the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, all in reasonable detail detail, together with (i) a quarterly accounts receivable exposure report for such Fiscal Quarter in the form prepared by management of Company in the ordinary course of business and examined (ii) a CFO Certification and reported on an MD&A with respect thereto;
(c) as soon as available and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a CFO Certification and an MD&A with respect thereto; and (ii) in the case of such consolidated financial statements, a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant Company and in form and substance reasonably satisfactory to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the CommissionAdministrative Agent;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies together with each delivery of all financial reporting packages prepared for management statements of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries pursuant to Sections 5.1(b) and (ii) the Company's compliance with the Retail Plan 5.1(c), a duly executed and the E-Commerce Plancompleted Compliance Certificate;
(fi) The Company will promptly furnish to THLi copies if, as a result of any reports furnished to GECC pursuant to change in accounting principles and policies from those used in the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness preparation of the Historical Financial Statements, the consolidated financial statements of Company and its Subsidiaries anddelivered pursuant to Section 5.1 (a), with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned 5.l(b) or operated by the Company or any of its Subsidiaries.5.1
Appears in 1 contract
Financial Statements and Other Reports. So long as any Notes shall remain outstanding, the Company will deliver to the Buyer, in duplicate:
(a) The Company will, as As soon as practicable available and in any event within 60 45 days after the end of each quarterly period (other than of the last quarterly period) in first three quarters of each fiscal yearyear of the Company, furnish to THLi statements of (i) a consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its consolidated Subsidiaries (included in the Company's Quarterly Report on Form 10-Q filed by the Company with the Commission for the relevant fiscal quarter), and the related consolidated statements of income and changes in financial position for such quarter and for the portion of the fiscal year ended at the end of such quarter, and (ii) the Quarterly Report to Shareholders for such quarter or another report containing summarized information for such quarter and for the portion of the fiscal year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the previous fiscal year;
(b) At any time when the Company does not file a Quarterly Report on Form 10-Q with the Commission, as soon as available, and in any event within 45 days after the end of each of the first three quarters in each fiscal year of the Company, unaudited consolidated statements of income, shareholders' equity and cash flows of the Company and its consolidated Subsidiaries for such quarterly period and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and an unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of such quarterly period, in each case setting forth in comparative form consolidated figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared by the Company in accordance with generally accepted accounting principles consistently followed throughout the periods involved, subject to normal year-end adjustments, and certified by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form with respect to such quarterly period;
(c) As soon as available and in any event within 90 days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its consolidated Subsidiaries as (included in the Company's Annual Report to Shareholders and Annual Report on Form 10-K filed by the Company with the Commission for the relevant fiscal year), and the related consolidated statements of the end of income, changes in stockholders' equity and cash flows for such quarterly periodfiscal year, setting forth in each case in comparative form the corresponding figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified reported on without material exception or qualification, by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Worldwide or other independent public accountants of nationally recognized standing;
(d) At any time when the Company does not file an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Annual Report on Form 10-Q of the Company for such quarterly period filed K with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company willCommission, as soon as practicable and in any event within 100 90 days after the end of each fiscal yearyear of the Company, furnish to THLi consolidated statements of consolidated net income income, stockholders' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the Company and its consolidated Subsidiaries as of at the end of such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures from the preceding fiscal year, all prepared in reasonable detail accordance with generally accepted accounting principles consistently followed throughout the periods involved, and examined and reported on certified by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Worldwide or other independent public accountants of recognized national standing selected by standing, whose certificate shall be satisfactory in scope and substance to the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of Buyer and who shall have authorized the Company for to deliver such financial statements and certification thereof to the Buyer, and accompanied by a written discussion of operations in summary form with respect to such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii)year;
(ce) The Company will, promptly Promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it the Company shall send to its stockholders and copies of all such registration statements (and regular or periodic reports, including without exhibits)limitation Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q and any current Reports on Form 8-K, other than registration statements relating in definitive form which it files or which it is or may be required to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(ef) Until With reasonable promptness, to the two-year anniversary of Buyer, such other financial data the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC Buyer may reasonably request; PROVIDED, relating to HOWEVER, that (i) the use of Proceeds by neither the Company and its Subsidiaries nor any Subsidiary shall be required to disclose any such information if such disclosure is prohibited by law, and (ii) any information provided pursuant to this paragraph 5A(f) which is designated in writing as proprietary or confidential at the time of receipt thereof, if such information is not otherwise in the public domain, shall not be disclosed by the Buyer to any other Person except (1) to its independent accountants and legal counsel, (2) pursuant to statutory and regulatory requirements, (3) pursuant to any mandatory court order, subpoena or other legal process, (4) to any other holder, or (5) in connection with the exercise of any remedy under this Agreement. The Buyer is hereby authorized to deliver a copy of any financial statement delivered to any holder pursuant to subparagraphs (a) through (e) of this paragraph 5A to any regulatory body having jurisdiction over any holder which requests such information. Any holder is further authorized, from and after the date hereof, to request information from and to have access to, the Company's compliance with the Retail Plan independent public accountants, and the E-Commerce Plan;
(f) The Company will promptly furnish direct such accountants to THLi copies of make available to any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of holder such information as any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser holder may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Senior Secured Notes and Stock Purchase Agreement (Elephant & Castle Group Inc)
Financial Statements and Other Reports. (a) The So long as any Notes shall remain outstanding, the Company willwill deliver to the Buyer, as in duplicate: As soon as practicable available and in any event within 60 45 days after the end of each quarterly period (other than of the last quarterly period) in first three quarters of each fiscal yearyear of the Company, furnish to THLi statements of (i) a consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its consolidated Subsidiaries (included in the Company's Quarterly Report on Form 10-Q filed by the Company with the Commission for the relevant fiscal quarter), and the related consolidated statements of income and changes in financial position for such quarter and for the portion of the fiscal year ended at the end of such quarter, and (ii) the Quarterly Report to Shareholders for such quarter or another report containing summarized information for such quarter and for the portion of the fiscal year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the previous fiscal year; At any time when the Company does not file a Quarterly Report on Form 10-Q with the Commission, as soon as available, and in any event within 45 days after the end of each of the first three quarters in each fiscal year of the Company, unaudited consolidated statements of income, shareholders' equity and cash flows of the Company and its consolidated Subsidiaries for such quarterly period and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and an unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of such quarterly period, in each case setting forth in comparative form consolidated figures for the corresponding periods in the preceding fiscal year, all in reasonable detail, prepared by the Company in accordance with generally accepted accounting principles consistently followed throughout the periods involved, subject to normal year-end adjustments, and certified by the principal financial officer of the Company and accompanied by a written discussion of operations in summary form with respect to such quarterly period; As soon as available and in any event within 90 days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its consolidated Subsidiaries as (included in the Company's Annual Report to Shareholders and Annual Report on Form 10-K filed by the Company with the Commission for the relevant fiscal year), and the related consolidated statements of the end of income, changes in stockholders' equity and cash flows for such quarterly periodfiscal year, setting forth in each case in comparative form the corresponding figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified reported on without material exception or qualification, by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Worldwide or other independent public accountants of nationally recognized standing; At any time when the Company does not file an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Annual Report on Form 10-Q of the Company for such quarterly period filed K with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company willCommission, as soon as practicable and in any event within 100 90 days after the end of each fiscal yearyear of the Company, furnish to THLi consolidated statements of consolidated net income income, stockholders' equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its consolidated Subsidiaries for such year, and a consolidated balance sheet of the Company and its consolidated Subsidiaries as of at the end of such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures from the preceding fiscal year, all prepared in reasonable detail accordance with generally accepted accounting principles consistently followed throughout the periods involved, and examined and reported on certified by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Worldwide or other independent public accountants of recognized national standing selected by standing, whose certificate shall be satisfactory in scope and substance to the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of Buyer and who shall have authorized the Company for to deliver such financial statements and certification thereof to the Buyer, and accompanied by a written discussion of operations in summary form with respect to such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly year; Promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it the Company shall send to its stockholders and copies of all such registration statements (and regular or periodic reports, including without exhibits)limitation Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q and any current Reports on Form 8-K, other than registration statements relating in definitive form which it files or which it is or may be required to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will; and With reasonable promptness, promptly after to the Buyer, such package becomes available, furnish to THLi copies of all other financial reporting packages prepared for management of data the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC Buyer may reasonably request; provided, relating to however, that (i) the use of Proceeds by neither the Company and its Subsidiaries nor any -------- ------- Subsidiary shall be required to disclose any such information if such disclosure is prohibited by law, and (ii) any information provided pursuant to this paragraph 5A(f) which is designated in writing as proprietary or confidential at the time of receipt thereof, if such information is not otherwise in the public domain, shall not be disclosed by the Buyer to any other Person except (1) to its independent accountants and legal counsel, (2) pursuant to statutory and regulatory requirements, (3) pursuant to any mandatory court order, subpoena or other legal process, (4) to any other holder, or (5) in connection with the exercise of any remedy under this Agreement. The Buyer is hereby authorized to deliver a copy of any financial statement delivered to any holder pursuant to subparagraphs (a) through (e) of this paragraph 5A to any regulatory body having jurisdiction over any holder which requests such information. Any holder is further authorized, from and after the date hereof, to request information from and to have access to, the Company's compliance with the Retail Plan independent public accountants, and the E-Commerce Plan;
(f) The Company will promptly furnish direct such accountants to THLi copies of make available to any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of holder such information as any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser holder may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Note, Stock Purchase and Warrant Agreement (Elephant & Castle Group Inc)
Financial Statements and Other Reports. (a) The Company willwill deliver, or cause to be delivered to the Purchasers or any Transferee:
(i) as soon as practicable prior to the beginning of each fiscal year and in any event promptly after approval thereof by the Company's Board of Directors, monthly budgets prepared on an annual basis, in reasonable detail and reasonably satisfactory in form and scope to the Purchasers;
(ii) as soon as practicable and in any event within 60 30 days after the end of each quarterly period fiscal month of the Company (other than the last quarterly period) in month of each fiscal yearquarter), furnish to THLi unaudited consolidated statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity flow of the Company and its Subsidiaries Subsidiaries, in summary form without footnotes, for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, month and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such quarterly periodmonth, setting forth forth, in each case case, in comparative form form, figures for the corresponding month and period in the preceding fiscal year and the budget for such month and for the period from the beginning of the current fiscal year to the end of such month, all in reasonable detail and reasonably satisfactory in form and scope to the Purchasers;
(iii) From and after the date upon which the Company has completed an initial public offering of its Common Stock or date any other Capital Stock, or if the Company prepares such statements in the ordinary course, as soon as practicable and in any event within 45 days after the end of each fiscal quarter of the Company, unaudited consolidated statements of income and cash flow of the Company and its Subsidiaries for such quarter and for the period from the current fiscal year to the end of such quarter and an unaudited consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarter, setting forth, in each case, in comparative form, figures for the corresponding quarters in the preceding fiscal year, all in reasonable detail and satisfactory in form and scope to the Purchasers, and certified by an authorized financial officer or member of the CompanyBoard of Directors of the Company as fairly presenting in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with generally accepted accounting principles, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(biv) The Company will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi consolidating and consolidated statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity flow of the Company and its Subsidiaries for such year, and a consolidating and consolidated balance sheet sheets of the Company and its Subsidiaries as of at the end of such year, setting forth forth, in each case case, in comparative form the form, corresponding figures from the preceding fiscal year, all in reasonable detail and examined reasonably satisfactory in form and scope to the Purchasers, and, as to the consolidated statements, reported on upon by independent public accountants of recognized national standing selected whose report shall be in scope and form reasonably satisfactory to the Purchasers and, as to the consolidating statements, certified by an authorized financial officer or member of the Board of Directors of the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(cv) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices notices, reports and reports other information as it shall send to all of its stockholders security holders and holders of Senior Debt and copies of all such reports and all registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as ) which it shall file files with the Commission, and, promptly upon release thereof, copies of all press releases;
(dvi) The Company willpromptly upon receipt thereof, promptly after such package becomes available, furnish a copy of each other report submitted to THLi copies the Board of all financial reporting packages prepared for management Directors of the Company; and
(e) Until the two-year anniversary Company or of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end Subsidiary of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and each management letter submitted to the Company by independent accountants in connection with any annual, interim or special audit of the books of the Company or any of its Subsidiaries made by such accountants, or any other reports prepared by such accountants.
(vii) together with each delivery of financial statements required by clauses (iii) and (iiiv) above, an Officers' Certificate of the Company's compliance with Company stating that the Retail Plan signers have reviewed the terms of this Agreement and the E-Commerce Plan;
(f) The Company will promptly furnish Securities and have made, or caused to THLi copies be made under their supervision, a review in reasonable detail of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness transactions and condition of the Company and its Subsidiaries andduring the fiscal period covered by such financial statements and that such review has not disclosed the existence during or at the end of such fiscal period, and that the signers do not have knowledge of the existence, as at the date of the Officers' Certificate, of any condition or event which constitutes a Default or Event of Default or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company has taken or is taking or proposes to take with reasonable promptnessrespect thereto, furnish to each Purchaser such other excluding, however, (y) matters which have been rectified within permitted cure periods and (x) matters not having, in the reasonable, good faith opinion of management of the Company, a material adverse effect on the business, condition (financial and other data or otherwise), assets, properties, or operations or prospects of the Company and its Subsidiaries Subsidiaries, taken as such Purchaser may reasonably requesta whole;
(viii) together with each delivery of consolidated financial statements required by clause (iv) above, includinga report of the independent public accountants giving the opinion thereon, but only if, in making the audit of such financial statements, such accountants have obtained knowledge of any Event of Default or Default, specifying in such report the nature and period of existence thereof; PROVIDED, that such accountants shall not limited tobe liable to anyone by reason of their failure to obtain knowledge of any Event of Default or Default which would not be disclosed in the course of an audit conducted in accordance with generally accepted auditing standards;
(ix) promptly upon any Responsible Officer of the Company obtaining knowledge (a) of any condition or event which constitutes a Default or Event of Default, operating (b) of any condition or event which, in the opinion of management of the Company would have a material adverse effect on the business, condition (financial information for each retail store owned or operated by other), assets, properties or operations or prospects of the Company and its Subsidiaries, taken as a whole, other than conditions or events applicable to the economy as a whole or to any industry in which the Company and its Subsidiaries are engaged, (c) that any Person has given any notice to the Company or any Subsidiary of the Company or taken any other adverse action against the Company with respect to a claimed Default or event or condition of the type referred to in clause (ii) of paragraph 9A or (d) of the institution of any litigation involving claims against the Company or any of its Subsidiaries, unless such litigation is defended by the insurance carrier without any reservation of rights and is reasonably expected to be fully covered by a creditworthy insurer, in an amount equal to or greater than $500,000 with respect to any single cause of action or of any adverse determination in any litigation involving a potential liability to the Company or any of its Subsidiaries equal to or greater than $500,000 with respect to any single cause of action, an Officers' Certificate 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 Default, event or condition, and what action the Company has taken, is taking or proposes to take with respect thereto;
(x) promptly upon any Responsible Officer of the Company or any of its ERISA Affiliates becoming aware of the occurrence of (i) any "reportable event," as such term is defined in section 4043 of ERISA, in connection with any Plan subject to Title IV of ERISA or section 412 of the Code or trust, insurance contract or other funding arrangement maintained or created thereunder or an event requiring the Company or any ERISA Affiliate to provide security to a Plan under section 401(a)(29) of the Code or (ii) any "prohibited transaction," as such term is defined in section 4975 of the Code or in section 406 of ERISA in connection with any Plan or any trust, insurance contract or other funding arrangement maintained or created thereunder, or in connection with any Welfare Plan or Multiemployer Plan or (iii) the institution of proceedings or the taking or expected taking of action by the PBGC or the Company or any of its ERISA Affiliates to terminate or withdraw or partially withdraw, in connection with any Plan subject to Title IV of ERISA or section 412 of the Code or any Multiemployer Plan or any trust, insurance contract or other funding arrangement maintained or created thereunder, a written notice specifying the nature thereof, what action the Company or any such Subsidiary has taken, is taking or proposes to take with respect thereto, and, when known, any action taken or threatened by the Internal Revenue Service or the PBGC with respect thereto;
(xi) promptly upon any material revision to the budgets referred to in clause (i) above, such monthly budgets, as revised; and
(xii) with reasonable promptness, such other information and data with respect to the Company or any of its Subsidiaries as the Purchasers may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Family Christian Stores Inc)
Financial Statements and Other Reports. Each Borrower shall, and shall cause its Subsidiaries to, maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. FiberNet shall deliver to the Administrative Agent, with a copy for each Lender, the following:
(ai) The Company will, Monthly Financials: as soon as practicable available and in any event ------------------ within 60 45 days after the end of each quarterly period calendar month (other than the last quarterly period) in each fiscal yearmonths of March, furnish to THLi June, September or December), the consolidated balance sheets of the members of the Borrower Group as at the end of such month and the related consolidated statements of income of the members of the Borrower Group for such month, all in reasonable detail;
(ii) Quarterly Financials: as soon as available and in any event -------------------- within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated net balance sheets of the members of the Borrower Group as at the end of such Fiscal Quarter and the related consolidated statements of income and cash flows and a statement of changes in consolidated stockholders' equity of the Company members of the Borrower Group for such Fiscal Quarter and its Subsidiaries for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearBusiness Plan for the current Fiscal Year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected certified by the Company; providedchief financial officer or treasurer of the Parent and FiberNet, howeveron behalf of the Borrower Group, that delivery pursuant they fairly present, in all material respects, the financial condition of the Borrower Group as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to clause changes resulting from audit and normal year-end adjustments;
(iii) below of a copy of the Annual Report on Form 10Year-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, End Financials: as soon as practicable, available and in any event within 5 ------------------- 90 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to such Fiscal Year,
(ia) the use consolidated balance sheets of Proceeds the members of the Borrower Group as at the end of such Fiscal Year and the related consolidated and consolidating statements of income, stockholders' or members' equity and cash flows of the members of the Borrower Group for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Business Plan for the Fiscal Year covered by such financial statements, all in reasonable detail and certified by the Company chief financial officer or treasurer of the Parent and its Subsidiaries and (ii) FiberNet, on behalf of the Company's compliance with Borrower Group, that they fairly present, in all material respects, the Retail Plan financial condition of the Borrower Group as at the dates indicated and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies results of any reports furnished to GECC pursuant to their operations and their cash flows for the Note Agreementperiods indicated; and
(gb) The Company will promptly furnish to THLi copies in the case of such consolidated financial statements specified in paragraph (a) above, a report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or of any compliance certificates furnished to lenders in respect of indebtedness other of the Company and its Subsidiaries andso-called "Big 5" independent certified public accounting firms, with reasonable promptnesswhich report shall be unqualified as to scope of audit, furnish to each Purchaser such other financial and other data shall express no doubts about the ability of the Company Persons covered thereby to continue as a going concern, and its Subsidiaries shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of the Borrower Group as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated statements) and that the examination by the Company or any of its Subsidiaries.such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
Appears in 1 contract
Financial Statements and Other Reports. (ai) The Company it will, as soon as practicable and in any event within 60 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' stockholders equity of the Company Corporation and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company Corporation and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the CompanyCorporation, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company Corporation for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(bii) The Company it will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company Corporation and its Subsidiaries for such year, and a consolidated balance sheet of the Company Corporation and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the CompanyCorporation; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company Corporation for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(ciii) The Company it will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices notices, and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(eiv) Until the two-year anniversary of the First Closing Date, the Company it will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company Corporation and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, including operating financial information for each retail store facility owned or operated by the Company Corporation or any of its Subsidiaries. Together with each delivery of financial statements required by clauses (i) and (ii) above, the Corporation will deliver to Purchaser a Compliance Certificate of an authorized financial officer of the Corporation demonstrating in reasonable detail compliance during and at the end of such accounting periods with the financial covenants contained in Section 6.15 of this Agreement in the manner set forth in such Compliance Certificate. At such other time or times that the Corporation delivers a compliance certificate to any other holder of Funded Debt, the Corporation will deliver such certificate, and any supporting detail, to Purchaser.
Appears in 1 contract
Financial Statements and Other Reports. (a) The Company willwill maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP. The Company will deliver to each Lender and the Agent:
(i) as soon as practicable available and in any event within 60 30 days after the end of each quarterly period month ending after the Closing Date, (other than 1) the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheets of the Company and its Subsidiaries and the consolidating balance sheets of the Company and the Material Subsidiaries, in each case as at the end of such month, (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows, in each case for such month and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding period or date in periods of the preceding previous fiscal yearyear and the corresponding figures from the consolidated plan and financial forecast for the current fiscal year delivered pursuant to Section 5.1(x), all in reasonable detail and certified by an authorized the chief financial officer or the controller of the CompanyCompany that they fairly present the financial condition of such entities as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; provided, however, that delivery pursuant to clause and (iii3) below of a copy of narrative report describing the Quarterly Report on Form 10-Q operations of the Company and its Subsidiaries in the form prepared for presentation to senior management for such quarterly monthly period filed with and for the Commission shall be deemed period from the beginning of the then current fiscal year to satisfy the requirements end of this clause (i)such monthly period;
(bii) The Company will, as soon as practicable available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year and within 100 days after the end of the fourth fiscal quarter of each fiscal year, furnish to THLi statements of (1) the consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheets of the Company and its Subsidiaries for such year, and a consolidated the consolidating balance sheet sheets of the Company and its the Material Subsidiaries as of at the end of such yearfiscal quarter, (2) the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the preceding consolidated plan and financial forecast for the current fiscal yearyear delivered pursuant to Section 5.1(x), all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected certified by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of chief financial officer or the Annual Report on Form 10-K controller of the Company for such fiscal year filed with that they fairly present the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end condition of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and the Company and the Material Subsidiaries, as the case may be, at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, and (ii3) the Companycompany's compliance quarterly report on Form 10-Q for such quarterly period, and (4) only if the Company does not file quarterly reports on Form 10-Q with the Retail Plan and Commission, a narrative report describing the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness operations of the Company and its Subsidiaries and, (in the form of management's discussion and analysis of such operations which would comply with reasonable promptness, furnish to each Purchaser such other financial and other data the disclosure requirements of the Company Exchange Act and its Subsidiaries as rules and regulations promulgated thereunder with respect to management's discussion and analysis set forth in quarterly reports on Form 10-Q) prepared for such Purchaser may reasonably request, including, but not limited to, operating financial information fiscal quarter and for each retail store owned or operated by the Company or any period from the beginning of its Subsidiaries.the then current fiscal year to the end of such fiscal quarter;
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Capstone Pharmacy Services Inc)
Financial Statements and Other Reports. (a) [Reserved.]
(b) The Company will, as soon as practicable Co-Issuers will deliver to the Trustee and in any event each Holder within 60 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for first three fiscal quarters of each Fiscal Year of Rivian Parent (commencing with the period from the beginning of the then current fiscal year to the end of such quarterly periodquarter ending June 30, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period2025), (1) setting forth in each case in comparative form figures for the corresponding period or date periods of the previous Fiscal Year, in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer case of the Companystatements of income and cash flows, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below and as of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal yearthe most recently completed Fiscal Year, furnish to THLi statements in the case of the consolidated net balance sheet, (i) a consolidated balance sheet of Rivian Parent as at the end of such quarter and the related income statement and statement of cash flows for such quarter and a statement of changes in consolidated stockholders' equity for the portion of the Company Fiscal Year elapsed at the end of such quarter and its Subsidiaries for such year, and (ii) a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such yearquarter and the related income statement for such quarter and for the portion of the Fiscal Year elapsed at the end of such quarter, (2) a management discussion and analysis of Rivian Parent for such quarter and (3) a presentation of the “Consolidated EBITDA” of the Company consistent with the calculation thereof set forth in the compliance certificates delivered pursuant to the ABL Credit Agreement; provided, however, that so long as Rivian Parent is required under applicable SEC rules and regulations to make filings with the SEC under Sections 13 and 15(d) of the Exchange Act, the Co-Issuers shall not be required to deliver the financial statements and management discussion required under Section 4.01(b)(1)(i) and Section 4.01(b)(2) until such later date as may be permitted under applicable SEC rules and regulations; provided, further that at any time Rivian Parent is not required under applicable SEC rules and regulations to make filings with the SEC under Sections 13 and 15(d) of the Exchange Act, references to “Rivian Parent” in this Section 4.01(b) shall refer to any other direct or indirect parent company of the Company that is required under applicable SEC rules and regulations to make such filings, or if there is no such other direct or indirect parent company of the Company, then the Co-Issuers shall not be required to deliver the financial statements and management discussion required under Section 4.01(b)(1)(i) and Section 4.01(b)(2).
(c) The Co-Issuers will deliver to the Trustee and each Holder within 90 days after the end of each Fiscal Year of Rivian Parent (commencing with the Fiscal Year ended December 31, 2025), (1) setting forth in each case in comparative form figures for the corresponding figures from previous Fiscal Year, (i) a consolidated balance sheet of Rivian Parent as of the preceding fiscal yearend of such Fiscal Year and the related consolidated statements of operations, all in reasonable detail members’ equity and examined and reported on cash flows for such Fiscal Year, audited by KPMG or other independent public accountants of nationally recognized national standing selected by and (ii) an unaudited consolidated balance sheet of the CompanyCompany as of the end of such Fiscal Year and the related income statement for such Fiscal Year, (2) a management discussion and analysis of Rivian Parent for such Fiscal Year and (3) a presentation of the “Consolidated EBITDA” of the Company consistent with the calculation thereof set forth in the compliance certificates delivered pursuant to the ABL Credit Agreement; provided, however, that delivery pursuant so long as Rivian Parent is required under applicable SEC rules and regulations to clause (iiimake filings with the SEC under Sections 13 and 15(d) below of a copy of the Annual Report on Form 10Exchange Act, the Co-K Issuers shall not be required to deliver the financial statements and management discussion required under Section 4.01(c)(1)(i) and Section 4.01(c)(2) until such later date as may be permitted under applicable SEC rules and regulations; provided, further that at any time Rivian Parent is not required under applicable SEC rules and regulations to make filings with the SEC under Sections 13 and 15(d) of the Exchange Act, references to “Rivian Parent” in this Section 4.01(c) shall refer to any other direct or indirect parent company of the Company for that is required under applicable SEC rules and regulations to make such fiscal year filed with filings, or if there is no such other direct or indirect parent company of the Commission Company, then the Co-Issuers shall not be deemed required to satisfy deliver the requirements of this clause (iifinancial statements and management discussion required under Section 4.01(c)(1)(i) and Section 4.01(c)(2);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;.
(d) The Within 10 Business Days after the occurrence of any event that would be required to be filed with the SEC on Form 8-K as in effect on the Closing Date (if the Company will, promptly after such package becomes available, furnish to THLi copies of all financial had been a reporting packages prepared for management company under Section 15(d) of the Company; and
(e) Until the two-year anniversary of the First Closing DateExchange Act), the Co-Issuers will deliver to the Trustee and each Holder a current report describing such event; provided that the foregoing shall not obligate the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to make available (i) any information otherwise required to be included on a Form 8-K regarding the use occurrence of Proceeds by any event if the Company and determines in its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish good faith judgment that such event that would otherwise be required to THLi copies of any reports furnished to GECC pursuant be disclosed is not material to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries andtaken as a whole, with reasonable promptness, furnish to each Purchaser such other financial and other data (ii) an exhibit or a summary of the terms of any employment or compensatory arrangement, agreement, plan or understanding between the Company and or any of its Subsidiaries as such Purchaser may reasonably requestand any director, including, but not limited to, operating financial information for each retail store owned officer or operated by manager of the Company or any of its Subsidiaries, (iii) copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K or (iv) any confidential information obtained from another Person or any trade secrets, privileged information or competitively sensitive information.
(e) The Co-Issuers shall deliver to the Trustee, within 90 days after the end of each fiscal year ending after the Closing Date, an Officer’s Certificate stating that a review of the activities of the Company and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Co-Issuers and each Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, no Default or Event of Default has occurred and is continuing (or, if any Default or Event of Default shall have occurred and are continuing, describing all such Defaults or Events of Default of which he or she may have knowledge, its status and the actions which the Co-Issuers are taking or propose to take with respect thereto).
(f) The Co-Issuers will deliver to the Trustee and each Holder, within 30 days after the Co-Issuers (or any of them) become aware of the occurrence of any Default or Event of Default (unless such Default or Event of Default shall have been cured or waived prior to the expiration of such 30-day period), an Officer’s Certificate setting forth the details of such Default or Event of Default, its status and the actions which the Co-Issuers are taking or propose to take with respect thereto.
(g) [Reserved].
(h) [Reserved].
(i) To the extent not satisfied by the foregoing, the Co-Issuers will, for so long as any Notes are outstanding, furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(j) To the extent any information required by Sections 4.01(b)-(i) is not provided as required pursuant to this Section 4.01 within the time periods specified and such information is subsequently provided, the Co-Issuers will be deemed to have satisfied their obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the rights of the Holders under Article 7 hereof if the Trustee or the Applicable Holders have declared the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately and such declaration shall not have been rescinded or canceled prior to such cure.
(k) [Reserved].
(l) Notwithstanding anything to the contrary set forth in this Section 4.01, the Co-Issuers may comply with their obligations to provide information to the Trustee and each Holder if the Co-Issuers, Rivian Parent or any other direct or indirect parent entity thereof (i) file such information publicly via the SEC’s ▇▇▇▇▇ filing system (or any successor system), (ii) make such information publicly available on the commercial website of the Co-Issuers or any parent entity thereof and provide reasonably prompt written notice thereof to the Trustee and each Holder (which may be by email) of the availability of the information and/or (iii) make such information available to the Holders on a website (which may require a confidentiality acknowledgement and may be maintained by the Company or a third party service provider) to which access will be given to Holders, bona fide prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act, institutional “accredited investors” within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Co-Issuers), and securities analysts (to the extent providing analysis of an investment in the Notes) and market making financial institutions that are reasonably satisfactory to the Co-Issuers who agree to treat such information and reports as confidential; provided that the Co-Issuers may deny access to any competitively-sensitive information and reports otherwise to be provided pursuant to this paragraph to any Holder, bona fide prospective investors, security analyst or market maker that is a competitor of the Co-Issuers and their Subsidiaries or any parent entity thereof to the extent that the Co-Issuers determine in good faith that the provision of such information and reports to such Person would be competitively harmful to the Co-Issuers and their Subsidiaries or any parent entity thereof; provided further, that each person with valid access to such website will receive an email notification (sent to the email address used by such person to obtain access to such website) when any information is posted to such website. The Co-Issuers may condition the delivery of any such reports to such Holders, prospective investors in the Notes and securities analysts and market making financial institutions pursuant to clause (iii) above on the agreement of such Persons to (A) treat all such reports (and the information contained therein) and information as confidential, (B) not use such reports (and the information contained therein) and information for any purpose other than their investment or potential investment in the Notes and (C) not publicly disclose any such reports (and the information contained therein) and information.
(m) The Company shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in quarterly conference call no later than 20 Business Days after the delivery of the information referred to in clause (b) or (c) above (which may be a single conference call together with investors and lenders holding other securities or Debt of the Company and/or its Restricted Subsidiaries) to discuss financial and operating results and related matters for the prior quarter, unless the Company reasonably determines that to do so would conflict with applicable securities laws; provided that the Company may satisfy the requirements of this clause by holding the required conference call as part of any public earnings call of Rivian Parent or any other direct or indirect parent company of the Company that is required under applicable SEC rules and regulations to make filings with the SEC under Sections 13 and 15(d) of the Exchange Act. The Company will issue a press release (or otherwise make such information available pursuant to Section 4.01(l)) announcing the time and date of such conference call (which date may be the same date on which the press release is issued) and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.01(l). The Trustee shall have no duty to effectuate, monitor or participate in this process.
(n) Delivery under this Section 4.01 of reports, information and documents to the Trustee is for informational purposes only. The Trustee shall have no duty to review or analyze any reports furnished or made available to it and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive knowledge of the information contained therein or determinable therefrom, including the Co-Issuers’ compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 1 contract
Financial Statements and Other Reports. (a) 71- 79 The Company willwill maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. The Company will deliver to the Agent and Lenders:
(i) Quarterly Financials: as soon as practicable available and in any event within 60 days after the end of each quarterly period fiscal quarter of each Fiscal Year (other than the last quarterly periodquarter of each Fiscal Year), (a) in the consolidated balance sheets of each of the Company and Holdings as at the end of such fiscal year, furnish to THLi quarter and the related consolidated statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company each such company for such fiscal quarter and its Subsidiaries consolidated cash flows of each such company for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal yearquarter, all in reasonable detail and certified by an authorized the chief financial officer officer, controller or treasurer of such company that they fairly present the Company, subject consolidated financial condition of such company as at the dates indicated and the results of its operations and their cash flows for the periods indicated and (b) a narrative report describing the operations of such company in the form prepared for presentation to changes resulting senior management for such fiscal quarter and for the period from year-the beginning of then current Fiscal Year to the end adjustmentsof such fiscal quarter; provided, however, provided that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on such company's Form 10-Q of the Company for such quarterly period filed with the Commission fiscal quarter shall be deemed to satisfy all of the requirements of this clause (i);subsection 5.1(i):
(bii) The Company will, Year-End Financials: as soon as practicable available and in any event within 100 105 days after the end of each fiscal yearFiscal Year, furnish to THLi statements (a) the consolidated balance sheets of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity each of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of Holdings at the end of such yearFiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of such company for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and, in the case of the Company, the corresponding figures from the preceding fiscal yearannual financial plan delivered pursuant to subsection 5.1(viii) for the Fiscal Year covered by such financial statements of the Company, all in reasonable detail detail, (b) a narrative report describing the operations of such company in the form prepared for presentation to senior management for such Fiscal Year, and examined and reported on by (c) an accountant's report thereon of KPMG Peat Marwick L.L.P. or other independent certified public accountants of recognized national standing selected by such company, which report shall be unqualified, shall express no doubts about the Companyability of such company to continue as a going concern, and shall state that such consolidated financial statements fairly present the consolidated financial position of such company as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; providedprovided that (i) references in such opinion to changes in GAAP, howeverchanges in accounting standards, that delivery pursuant to clause (iii) below highlighting contents of a copy footnotes, limitations in the scope of the Annual Report on audit or exclusions from the audit information not required by GAAP that are, in each case, customary in industry practice and not prejudicial to the opinion stated therein shall not be deemed to be "qualifications" for the purpose of this subsection and (ii) delivery of such -72- 80 company's Form 10-K of the Company for such fiscal year filed with the Commission Fiscal Year shall be deemed to satisfy all of the requirements of this clause (iisubsection 5.1(ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Revolving Credit Agreement (America West Holdings Corp)
Financial Statements and Other Reports. (ai) The Company will, as soon as practicable and in any event within 60 45 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi the Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet sheets of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(bii) The Company it will, as soon as practicable and in any event within 100 90 days after the end of each fiscal year, furnish to THLi the Purchaser statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet sheets of the Company and its Subsidiaries as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(ciii) The Company it will, promptly upon transmission thereof, furnish to each the Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(eiv) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, it will promptly furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to the Purchaser (a) copies of (i) the use any compliance certificates furnished to lenders in respect of Proceeds by Indebtedness of the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies any notices of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to default from lenders in respect of indebtedness any such Indebtedness and (b) notice of (i) the commencement of any Litigation which, if determined adversely to the Company, would have a Material Adverse Effect, (ii) the issuance by any governmental authority of any injunction, order, restraint or other decision which has resulted in, or which is likely, in the reasonable judgment of the Company and its Subsidiaries andor any such Subsidiary, with reasonable promptness, furnish to each Purchaser such other financial and other data have a Material Adverse Effect or (iii) any development in the business or affairs of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiariesthe Subsidiaries which has resulted in, or which is likely, in the reasonable judgment of the Company or any such Subsidiary, to result in a Material Adverse Effect. Together with each delivery of financial statements required by clause (ii) above, the Company will deliver to the Purchaser a certificate of the Chief Financial Officer, Treasurer or other financial officer of the Company regarding compliance by the Company with the covenants set forth in Sections 6.1 and 6.4.
Appears in 1 contract
Sources: Securities Purchase Agreement (Healthcare Capital Partners Lp)
Financial Statements and Other Reports. Each of the Obligors agrees to deliver to the Administrative Agent and (except for the weekly Investor Commitment required by clause (a) The Company willand the weekly schedule of Eligible Receivables required by clause (j) of this Section which are to be furnished only to the Administrative Agent) to each of the other Banks:
(a) by no later than Wednesday of each week, as soon as practicable such Obligor's weekly Investor Commitment (described in Section 2.13) for the preceding week in form substantially similar to those heretofore furnished to the Administrative Agent, sufficient in detail to allow the Administrative Agent to reconcile such reports with Investor Commitments held in trust by the Obligors for the Administrative Agent,
(b) promptly -- and in any event within 60 thirty (30) days -- after the end of each calendar month, a management report substantially in the form of Schedule 3 regarding such Obligor's commitment position, pipeline position and hedging position, prepared as of the end of such month;
(c) within thirty (30) days after the end of each quarterly period (other than calendar month, the last quarterly period) in each fiscal yearObligors' and the Guarantor's monthly Financial Statements, furnish to THLi statements of consolidated net income and cash flows and including a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures month and an income statement for such month and for the corresponding period or date fiscal year to date, prepared substantially in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, accordance with GAAP subject to changes resulting from normal year-end adjustments; provided, however, that delivery pursuant . and also including copies in forms substantially similar to clause (iii) below those heretofore furnished to the Administrative Agent of a copy each of the Quarterly Report on Form 10-Q of the Company Obligors' portfolio delinquency reports for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)month;
(bd) The Company will, as soon as practicable available and in any event within 100 ninety (90) days after the last day of each fiscal year of each of the Obligors and the Guarantor (or longer if, and for the same period that, GNMA, FNMA, FHLMC and HUD extend the time for such Obligor to file audited Financial Statements with them, but in no event beyond one hundred twenty (120) days after such fiscal year end), each Obligor's and the Guarantor's annual Financial Statements, and including a balance sheet and a statement of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form and in reasonable detail, and all notes to them, all prepared in conformity with GAAP and accompanied by a report and opinion, without material disclaimer or qualification, of KPMG Peat, Marwick or another firm of certified public accountants reasonably acceptable to and approved by the Administrative Agent, stating that such accountants have conducted audits of such Financial Statements in accordance with generally accepted auditing standards and that, in their opinion, such Financial Statements present fairly, in all material respects, the financial position of the applicable Obligor or the Guarantor as of the date thereof and the results of its operations and cash flows for the periods covered thereby in conformity with GAAP -- each such annual auditor's report and opinion shall either include or be accompanied by (1) such accountants' statement that their examination included tests relating to Mortgage Loans serviced for others in accordance with the requirements of the "Uniform Single Audit Program for Mortgage Bankers" and (2) such accountants' report made in accordance with the requirements of such program of exceptions or errors, if any, in such Obligor's or the Guarantor's records, and Obligors shall forward to Administrative Agent such accountants' management letter within thirty (30) days after Obligors' receipt thereof;
(e) as soon as available and in any event within forty-five (45) days after the end of (1) each month a current written appraisal by the management of each Obligor, and (2) each fiscal yearquarter of each fiscal year of each Obligor, furnish a current written appraisal by an independent appraiser (nationally known as expert in the evaluation of Loan Servicing Rights and acceptable to THLi statements the Administrative Agent in the exercise of consolidated net income and cash flows and a statement of changes its sole discretion), in consolidated stockholders' equity each case appraising the fair market value of the Company and its Subsidiaries for Owned Servicing Rights of such year, and a consolidated balance sheet of the Company and its Subsidiaries Obligor as of the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding month or fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Companyquarter; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission appraisal shall be deemed addressed to satisfy the requirements Administrative Agent and shall be in a form reasonably acceptable to the Administrative Agent, and if the opinion of value in any such appraisal is expressed as a range of values, then for purposes of this clause (ii);
(c) The Company willAgreement, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.the
Appears in 1 contract
Financial Statements and Other Reports. The Company shall deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent, with sufficient copies for each Lender:
(a) The Company will, as soon as practicable available, but not later than the earlier of (i) five (5) days after the filing thereof with the SEC and in any event within 60 (ii) 90 days after the end of each quarterly period fiscal year (other than commencing with the last quarterly period) in each fiscal yearyear ended December 31, furnish to THLi statements 1998), a copy of the audited consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity balance sheet of the Company and its Subsidiaries for the period from the beginning of the then current fiscal year to as at the end of such quarterly periodyear and the related consolidated statements of income or operations, shareholders' equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another nationally-recognized independent public accounting firm ("INDEPENDENT AUDITOR") which report shall state that such consolidated financial statements present fairly the financial position for the periods indicated in conformity with GAAP applied on a basis consistent with prior years. Such opinion shall not be qualified or limited because of a restricted or limited examination by the Independent Auditor of any material portion of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than the earlier of (i) five (5) days after the filing thereof with the SEC and (ii) 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ended September 30, 1998), a copy of the unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case in comparative form figures for quarter and the corresponding period or date in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i);
(b) The Company will, as soon as practicable and in any event within 100 days after the end of each fiscal year, furnish to THLi related consolidated statements of consolidated net income income, shareholders' equity and cash flows for the period commencing on the first day and a statement of changes in consolidated stockholders' equity of ending on the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end last day of such yearquarter, setting forth in each case in comparative form the corresponding figures from for the preceding fiscal year, all in reasonable detail and examined and reported on by independent public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such previous fiscal year filed and certified by a Responsible Officer as fairly presenting, in accordance with the Commission shall be deemed GAAP (subject to satisfy the requirements of this clause (ii);
(c) The Company willordinary, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibitsgood faith year-end audit adjustments), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the Commission;
(d) The Company will, promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; and
(e) Until the two-year anniversary of the First Closing Date, the Company will, as soon as practicable, and in any event within 5 days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries and (ii) the Company's compliance with the Retail Plan position and the E-Commerce Plan;
(f) The Company will promptly furnish to THLi copies results of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness operations of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiaries.
Appears in 1 contract
Financial Statements and Other Reports. Company will deliver to Administrative Agent for further distribution (and which Administrative Agent shall promptly distribute) to each Lender, in form and detail reasonably satisfactory to Administrative Agent:
(a) The Company will, as soon as practicable available and in any event within 60 twenty-five (25) days after the end of each quarterly period (other than the last quarterly period) in each fiscal year, furnish to THLi statements of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the first two (2) months of each Fiscal Quarter ending after the Effective Date (such reports, the “Monthly Reports”), (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such month and the related consolidated statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such month and (ii) for the period from the beginning of the then current fiscal year Fiscal Year to the end of such quarterly period, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodmonth, setting forth beginning with the monthly financial statements for fiscal year 2005, in each case in comparative form the corresponding figures for the corresponding period or date in periods of the preceding fiscal yearprevious Fiscal Year, all in reasonable detail detail, together with a CFO Certification and certified by an authorized financial officer MD&A with respect to each of the Company, subject to changes resulting from year-end adjustmentsforegoing; provided, however, that delivery during any period in which the Leverage Ratio as of the last day of the immediately preceding Fiscal Quarter (determined for any such period by reference to the most recent Compliance Certificate delivered pursuant to clause (iiiSection 5.1(d) below of a copy of calculating the Quarterly Report on Form 10-Q of the Leverage Ratio) is 4.50:1.00 or less, Company shall not be required to deliver any Monthly Reports required by this Section 5.1(a) for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i)period;
(b) The Company will, as soon as practicable available and in any event within 100 forty-five (45) days after the end of the first three (3) Fiscal Quarters of each fiscal yearFiscal Year, furnish to THLi the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of consolidated net income income, stockholders’ equity and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, Fiscal Quarter and a consolidated balance sheet for the period from the beginning of the Company and its Subsidiaries as of then current Fiscal Year to the end of such yearFiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the preceding fiscal yearFinancial Plan for the current Fiscal Year, all in reasonable detail detail, together with (i) a quarterly accounts receivable exposure report for such Fiscal Quarter in the form prepared by management of Company in the ordinary course of business and examined (ii) a CFO Certification and reported on an MD&A with respect thereto;
(c) as soon as available and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a CFO Certification and an MD&A with respect thereto; and (ii) in the case of such consolidated financial statements, a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by the Company; provided, however, that delivery pursuant Company and in form and substance reasonably satisfactory to clause (iii) below of a copy of the Annual Report on Form 10-K of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii);
(c) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send to its stockholders and copies of all such registration statements (without exhibits), other than registration statements relating to employee benefit or dividend reinvestment plans, and all such regular and periodic reports as it shall file with the CommissionAdministrative Agent;
(d) The together with each delivery of financial statements of Company willand its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), promptly after such package becomes available, furnish to THLi copies of all financial reporting packages prepared for management of the Company; anda duly executed and completed Compliance Certificate;
(e) Until (i) if, as a result of any change in accounting principles and policies from those used in the two-year anniversary preparation of the First Closing DateHistorical Financial Statements, the consolidated financial statements of Company willand its Subsidiaries delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent; and (ii) promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all final management letters submitted to Company by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of Company and its Subsidiaries made by such accountants, including any comment letter submitted by such accountants to management in connection with their annual audit;
(f) together with each delivery of consolidated financial statements of Company and its Subsidiaries pursuant to Section 5.1(c), a written statement by the independent certified public accountants giving the report thereon stating (i) that their audit examination has included a review of the terms of the Credit Documents, (ii) whether, in connection therewith, any condition or event that constitutes an Event of Default with regard to any of the Financial Performance Covenants has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period of existence thereof, it being understood that such audit examination was directed primarily at accounting matters; and (iii) that nothing has come to their attention that causes them to believe either or both that the information contained in any Compliance Certificate is not correct or that the matters set forth in such Compliance Certificate are not stated in accordance with the terms hereof;
(g) promptly upon their becoming available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Company to its public security holders in such capacity or by any Subsidiary of Company to its security holders other than Company or another Subsidiary of Company, and (ii) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority;
(h) promptly upon any Responsible Officer obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Company with respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any Responsible Officer obtaining knowledge of (i) the institution of, or any written threat of, any Adverse Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) is reasonably likely to give rise to a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Company to enable Lenders and their counsel to evaluate such matters;
(i) promptly but in any event within twenty (20) days after Company, any of its Subsidiaries or any of its ERISA Affiliates knows, or has reason to know, that (1) any ERISA Event with respect to an Employee Benefit Plan has occurred or will occur, or (2) Company, any of its Subsidiaries or any of their respective ERISA Affiliates has applied for a waiver of the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, or (3) the aggregate present value of the Unfunded Benefit Liabilities under all Pension Plans has in any year increased by to an amount in excess of $1,000,000, or (4) any ERISA Event occurs with respect to a Multiemployer Plan which presents a material risk of a partial or complete withdrawal (as described in Section 4203 or 4205 of ERISA) by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan and such withdrawal is reasonably expected to trigger withdrawal liability payments in any year in excess of $5,000,000, or (5) Company, any of its Subsidiaries or any of their respective ERISA Affiliates is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan, or (6) the potential withdrawal liability (as determined in accordance with Title IV of ERISA) of Company, any of its Subsidiaries and their respective ERISA Affiliates with respect to all Multiemployer Plans has in any year increased to an amount in excess of $5,000,000, or (7) there is an action brought against Company, any of its Subsidiaries or any of their respective ERISA Affiliates under Section 502 of ERISA with respect to its failure to comply with Section 515 of ERISA, a certificate of the president or chief financial officer of Company setting forth the details of each of the events described in clauses (1) through (7) above as applicable and the action which Company, any of its Subsidiaries or their respective ERISA Affiliates proposes to take with respect thereto, together with a copy of any notice or filing from the PBGC or which may be required by the PBGC or other agency of the United States government with respect to each of the events described in clauses (1) through (7) above, as applicable;
(ii) As soon as practicable, possible and in any event within 5 ten (10) Business Days after the receipt by the Company (or to the knowledge of the Company, after receipt by any of its Subsidiaries or any of their respective ERISA Affiliates) of a demand letter from the PBGC notifying the Company, its Subsidiaries or their respective ERISA Affiliates of its decision finding liability, a copy of such letter, together with a certificate of the president or chief financial officer of the Company setting forth the action which the Company, its Subsidiaries or their respective ERISA Affiliates proposes to take with respect thereto;
(k) as soon as practicable and in any event no later than sixty (60) days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year (a “Financial Plan”), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for such Fiscal Year, together with an explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for each month of each Fiscal Year, together with an explanation of the assumptions on which such forecasts are based, and (iii) such other information and projections as any Lender may reasonably request;
(l) with reasonable promptness, copies of any material amendment, restatement, supplement or other modification to or waiver of the Stock Purchase Agreement and the Management Agreement entered into after the date hereof;
(m) in the event that (y) Credit Party acquires rights in Collateral that requires delivery of a Pledge Supplement (as such term is defined in the Pledge & Security Agreement) pursuant to Sections 4.2(b)(i), 4.3(c), 4.4.1(a)(i), 4.6(b), 4.7(b) and 4.8(b) of the Pledge & Security Agreement, then Company shall deliver to the Collateral Agent such Pledge Supplement, within twenty-five (25) days after the end of each month, furnish to THLi and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by the Company and its Subsidiaries month in which such Collateral was acquired; and (iiz) the Company's compliance any Credit Party changes its name, type of organization or jurisdiction of organization, it shall comply with the Retail Plan requirements set forth in Section 4.1(b) of the Pledge and the E-Commerce PlanSecurity Agreement;
(fn) The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness of the Company and its Subsidiaries and, with reasonable promptness, furnish to each Purchaser such other financial information and other data of the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the with respect to Company or any of its Subsidiaries.Subsidiaries as from time to time may be reasonably requested by any Lender (through the Administrative Agent);
Appears in 1 contract
Financial Statements and Other Reports. (a) The Company will, covenants that it -------------------------------------- will deliver to each holder of a Note in quadruplicate:
(i) as soon as is practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) in each fiscal year commencing with the first such quarter ending after the date of the Closing, a consolidated statement of income of the Company and its Subsidiaries for such quarterly period and for the period from the beginning of such fiscal year to the end of such quarterly period, setting forth in comparative form figures for the corresponding quarterly and year-do-date periods in the preceding fiscal year, furnish to THLi statements a consolidated statement of consolidated net income and cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for the period from the beginning of the then current such fiscal year to the end of such quarterly periodquarter, setting forth in comparative form figures for the corresponding period in the preceding fiscal year, and a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly periodQuarter, setting forth in each case in comparative form figures for the corresponding period or date in the preceding fiscal yearyear end, all in reasonable detail and certified as complete and correct and prepared in accordance with generally accepted accounting principles by an authorized financial officer of the Company, subject to changes resulting from year-end adjustments; provided, however, that delivery pursuant to clause (iii) below of -------- ------- a copy of the Quarterly Report on Form 10-Q of the Company for such quarterly period filed with the Commission shall be deemed to satisfy the requirements of this clause (i), provided that such report contains at least the information required to be delivered pursuant to this clause;
(bii) The Company will, as soon as practicable and in any event within 100 120 days after the end of each fiscal year, furnish to THLi consolidated statements of consolidated net income and of cash flows and a statement of changes in consolidated stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such year, setting forth in each case in comparative form the corresponding figures from the preceding fiscal yearannual audit, all in reasonable detail and examined and reported on accompanied by an opinion, directed to the Company, of Peat Marwick Main & Co. or of other independent public accountants of recognized national standing selected by the CompanyCompany and reasonably satisfactory to the Required Holder(s), whose opinion shall be in scope and substance reasonably satisfactory to the Required Holder(s) (it being agreed that the form of opinion included in the Historical Financial Statements is satisfactory); provided, however, that delivery deliver pursuant to clause (iii) below of a copy of -------- ------- the Annual Report on Form 10-K (including all incorporated documents) of the Company for such fiscal year filed with the Commission shall be deemed to satisfy the requirements of this clause (ii), provided that such report contains at least the information required to be delivered pursuant to this clause;
(ciii) The Company will, promptly upon transmission thereof, furnish to each Purchaser copies of all such financial statements, proxy statements, notices and reports as it shall send or shall be required to send to its public stockholders and copies of all such registration statements (without exhibits), other than on Form S-8 or any similar successor form (except to the extent such registration statements relating statement on Form S-8 relates to employee benefit or dividend reinvestment plansthe Plan), and all such regular and periodic public reports as which it shall files or is required to file with the Commission;
(div) The promptly upon receipt thereof, a copy of each management letter or similar report submitted to the Company willby independent accountants in connection with any annual, promptly after such package becomes available, furnish to THLi copies interim or special audit made by them of all financial reporting packages prepared for management the books of the Company or any Subsidiary of the Company;
(v) promptly upon its becoming available and any event within 30 days after such time as such reports are required to be filed with the IRS, a copy of the annual report of the ESOP on Form 5500;
(vi) promptly upon their becoming available, copies of the Annual Report on Form 11-K of the ESOP as filed with the Commission;
(vii) promptly following the Company's obtaining knowledge thereof, a notice of the occurrence of any event (other than matters of general public knowledge) that could, in the reasonable judgment of the Company, be expected to give rise to a change in the interest rate applicable to the Notes or the payment of any amount by the ESOP pursuant to paragraph 7;
(viii) promptly upon the Company's receipt thereof, a copy of any notice given by a holder of a Note pursuant to the parenthetical clause contained in clause (b) of the last paragraph of paragraph 9A; and
(eix) Until promptly upon your request therefor, such other information relating to the two-year anniversary Company, its Subsidiaries or the ESOP as you may reasonably request. Together with each delivery of the First Closing Datefinancial statements required by clause (i) or (ii) above, the Company willwill deliver to each holder of Notes an Officer's Certificate stating that, as soon as practicableto such officers' knowledge, there exists no Event of Default or Default or Purchase Event, or, if any Event of Default or Default or Purchase Event exists, specifying the nature and in any event within 5 days after the end period of each month, furnish to THLi existence thereof and GECC detailed reports, and any other information THLi and GECC may reasonably request, relating to (i) the use of Proceeds by what action the Company and its Subsidiaries and is taking or proposes to take with respect thereto. Together with each delivery of financial statements required by clause (ii) above, the Company's compliance Company deliver to each holder of Notes a certificate of such accountants stating that, in making the audit necessary to the certification of such financial statements, they have obtained no knowledge of any Event of Default or Default or Purchase Event, or, if they have obtained knowledge of any Event of Default or Default or Purchase Event, specifying the nature and period of existence thereof. Such accountants, however, shall not be liable to anyone by reason of their failure to obtain knowledge of any Event of Default or Default or Purchase Event which would not be disclosed in the course of an audit conducted in accordance with the Retail Plan and the E-Commerce Plan;
(f) generally accepted auditing standards. The Company will promptly furnish to THLi copies of any reports furnished to GECC pursuant to also covenants that forthwith upon the Note Agreement; and
(g) The Company will promptly furnish to THLi copies of any compliance certificates furnished to lenders in respect of indebtedness chief executive officer, chief operating officer, principal financial officer, principal accounting officer or treasurer of the Company and its Subsidiaries andobtaining actual knowledge of an Event of Default or Default or Purchase Event, with reasonable promptness, furnish it will deliver to each Purchaser such other financial holder of Notes an Officer's Certificate specifying the nature and other data period of existence thereof and what action the Company and its Subsidiaries as such Purchaser may reasonably request, including, but not limited to, operating financial information for each retail store owned or operated by the Company or any of its Subsidiariesis taking on proposes to take with respect thereto.
Appears in 1 contract
Sources: Note Purchase Agreement (Armstrong World Industries Inc)