Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any Notes: (a) not later than the earlier to occur of (i) the fiftieth day after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a); (b) not later than the earlier to occur of (i) the one hundred twentieth day after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP or other reputable firm of independent public accountants reasonably satisfactory to the Purchasers, which report shall state that such consolidated financial statements present fairly the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b); (c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements. (d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement; (e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments; (f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit; (g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries; (h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto; (i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole; (j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested; (k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and (l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Perma Fix Environmental Services Inc)
Accounting; Financial Statements and Other Information. The Company will maintain, maintain and will cause each of its Subsidiaries to maintain, maintain a uniform system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principlesprinciples ("GAAP"). The Company will deliver (in duplicate) to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any NotesHolder:
(a) not later than the earlier to occur of (i) the fiftieth day as soon as practicable after the end of each of the first three quarterly fiscal periods in of each fiscal year of the Company Hagler, and (ii) the date of the filing thereof with the Securities in any event within 45 xxxx thereafter, consolidating and Exchange Commission, consolidated balance sheets of the Company Hagler and its Subsidiaries xxx Xubsidiaries as at the end of such period and the related consolidating and consolidated statements of income, stockholders' equity income and of cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning portion of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a the principal financial officer of the Company as presenting fairlybeing complete and as fairly presenting, in accordance with generally accepted accounting principles (except GAAP, the financial position of Hagler and xxx Xubsidiaries and results of their operations for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereinperiod then ended, subject only to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth day as soon as practicable after the end of each fiscal year of the Company Hagler, and (ii) the date of the filing thereof with the Securities in any event within 90 xxxx thereafter, consolidating and Exchange Commission, consolidated balance sheets of the Company Hagler and its Subsidiaries xxx Xubsidiaries as at the end of such year and the related consolidating and consolidated statements of income, stockholders' equity income and of cash flows of the Company Hagler and its Subsidiaries for such fiscal suxx year, setting forth in each case in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and and, in the case of such consolidated statements, accompanied by a the report and opinion thereon of BDO Xxxxxxx, LLP or other reputable firm of independent public accountants of recognized national standing selected by Hagler and reasonably satisfactory to the Purchasersacceptable tx Holder, which report opinion shall state that such consolidated financial statements present fairly the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made be prepared in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions standards and shall be based upon an examination by such accountants of the Exchange Act, timely delivery accounts of copies Hagler and all of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b)its Subsidiaries;
(c) together with each delivery of financial statements pursuant referred to in subdivisions (a) and (b) of this section 7above, an Officers' Officer's Certificate of the Company (i) stating that each of the signers have has reviewed the relevant terms of this Agreement Note and of the Notes and have has made, or caused to be made under their his supervision, a an adequate review in reasonable detail of the transactions and condition of the Company Hagler and its Subsidiaries during the accounting xxx fiscal period covered by such financial statements and statements, (ii) stating that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not period nor does such signer have knowledge of the existence existence, as at the date of the Officers' Certificatesuch certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event Default existed or exists, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, and (iiiii) setting forth and demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions financial and restricted payment covenants contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.this Note;
(d) together with each delivery of financial statements pursuant referred to in subdivision (b) of this section 7above, a written statement certificate by the independent public accountants giving the report thereon reporting on such financial statements (provided that such accountants shall not be required to go beyond normal auditing procedures to make such statement) (i) briefly setting forth the scope of their examination (which shall have been made in accordance with generally accepted auditing standards) and stating that in their audit judgment such examination has included a review of the terms of this Agreement and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required)render such certificate, (ii) stating whether, in the course of whether or not their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of examination has disclosed the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined covering the Officers' Certificate delivered matters referred to in connection therewith pursuant to clause (iii) of subdivision (c) of this section 7 and that above with respect to the matters set forth in fiscal year covered by such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreementfinancial statements;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports reports, if any, submitted to the Company by independent public accountants in connection with each annual, annual or interim or special audit of the books of the Company or any Subsidiary of its Subsidiaries made by such accountants;
(f) prompt written notice of (i) any litigation involving a claim of more than $200,000 against the Company or any of its Subsidiaries, includingor (ii) any matter which, without limitationin the opinion of the Company, might have a materially adverse effect on the comment letter submitted by such accountants to management in connection with their annual auditoperations, business condition (financial or otherwise), affairs or prospects of the Company or any of its Subsidiaries (a "Material Adverse Effect");
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly forthwith upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential any Event of Default, or that a certificate of such officer specifying the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same nature and the period of existence thereof and what action the Company has taken, is taking and or proposes to take with respect thereto;
(ih) promptly upon any principal officer concurrently with the transmittal thereof, copies of all information provided under Section 5.1 of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any Credit Agreement; and
(i) "reportable event"as soon as practicable, as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, all such other financial reports and information and data with respect to the business, affairs or condition of the Company or any of its Subsidiaries as from time to time may reasonably be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretorequested by Holder.
Appears in 1 contract
Samples: Sale Agreement (Hagler Bailly Inc)
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any Notes, and to each other holder Institutional Holder of any Notesat least 5% in principal amount of the Notes at the time outstanding:
(a) not later than the earlier to occur of as soon as available but in any event within ninety (i90) the fiftieth day days after the end of each of the first three quarterly fiscal periods in each year of the Company, a consolidated balance sheet of the Company and its Subsidiaries at the end of such period, and a consolidated statement of earnings and retained earnings of the Company and its Subsidiaries for such period and for the portion of the fiscal year ending with such period, together with a statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer or an Assistant Treasurer of the Company;
(b) as soon as available but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, a consolidated balance sheets sheet of the Company and its Subsidiaries as at the end of such period year, and the related a consolidated statements statement of income, stockholders' equity earnings and retained earnings and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly periodSubsidiaries, setting forth in each case setting forth in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth day after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP Gxxxx Xxxxxxxx or other reputable firm of independent public accountants reasonably satisfactory of recognized national standing selected by the Company to the Purchasers, which report shall state effect that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior years fiscal year (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the end of such year and the consolidated results of operations for such year, and that the audit examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) as soon as available but in any event within ninety (90) days after the end of each of the first three quarterly fiscal periods in each year of Unitil, a balance sheet of Unitil at the end of such period, and a statement of earnings and retained earnings of Unitil for such period and for the portion of the fiscal year ending with such period, together with a statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer, an Assistant Treasurer or any Vice President of Unitil;
(d) as soon as available but in any event within one hundred twenty (120) days after the end of the fiscal year of Unitil, a balance sheet of Unitil as at the end of such year, and a consolidated statement of earnings and retained earnings and cash flows of Unitil, in each case setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of Gxxxx Xxxxxxxx or other independent public accountants of recognized national standing selected by Unitil to the effect that such financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal year (except for such changes, if any, as may be specified in such opinion) and fairly present, in all material respects, the financial position of Unitil as of the end of such year and the results of operations for such year, and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(e) concurrently with delivery of financial statements pursuant to subdivisions (athe documents provided for in Sections 12.1(a) and (b) of this section 7), an Officers' Certificate (i) Officer's Certificate, stating that the signers have officer providing the certificate has reviewed the terms provisions of this Agreement and setting forth whether there existed as of the Notes date of such financial statements and have madewhether, or caused to be made under their supervisionthe best of such officer's knowledge, a review in reasonable detail there exists on the date of the transactions and condition of the Company and its Subsidiaries certificate or existed at any time during the accounting period covered by such financial statements and that such review has not disclosed the existence during any Default 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 Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, orand, if any such condition or event existed or existsexists on the date of the certificate, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(if) promptly upon any principal officer after the same are available, copies of all proxy statements, financial statements and reports as the Company or any other officer its parent shall send to its public stockholders, and copies of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability all reports which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of its parent may file with the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company SEC or any of its Subsidiaries as from governmental authority at any time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretosubstituted therefor; and
(lg) promptly upon any principal officer such other information relating to the affairs of the Company obtaining knowledge as a Purchaser or any such holder reasonably may request from time to time, including, without limitation, written verification (including computations) of any dispute which may exist between compliance by the Company or any Subsidiary and any governmental authority which may have a material adverse effect on with the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretorequirements of Section 11.3 through 11.4.
Appears in 1 contract
Samples: Note Agreement (Unitil Corp)
Accounting; Financial Statements and Other Information. (a) The Company will maintain, and will cause each of its Subsidiaries to maintain, maintain a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principlesGAAP. The Company will deliver (in duplicate) to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any Notes:
(a) not later than the earlier to occur of (i) the fiftieth day after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as Whenever the Company is not otherwise subject to the reporting provisions obligations of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period Company will satisfy the requirements of this paragraph (a);deliver to each Investor:
(b) not later than the earlier to occur of (i) the one hundred twentieth day within 90 days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP or other reputable firm of independent certified public accountants reasonably satisfactory to of recognized standing selected by the Purchasers, Company which report shall state that such consolidated financial statements present fairly in all material respects the financial position of the Company and its Subsidiaries as at the dates indicated and the results of their its operations and their its cash flows for the periods indicated in conformity with generally accepted accounting principles GAAP applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 45 days after the end of each monthfiscal quarter of the Company, consolidated balance sheets of the Company and its Subsidiaries as at the end of such month quarter and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such monthquarter, setting forth forth, in each case in comparative form the consolidated form, figures for the corresponding periods of the previous fiscal yearquarter, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;detail; and
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;requested by an Investor.
(kb) promptly upon any principal officer Each set of financial statements required to be provided by the Company obtaining knowledge of pursuant to this Section 9.1 shall be substantially in the form appropriate for inclusion in a filing on Form 10-K or Form 10-Q, as applicable, with the SEC pursuant to the Exchange Act, and shall be accompanied by a narrative report setting forth, in reasonable detail, for such period, any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on deviations by the Company and its Subsidiaries, taken as a whole, a written notice specifying Subsidiaries from the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoBusiness Plan.
Appears in 1 contract
Samples: Stockholders Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp)
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the Purchasersyou, so long as each such Purchaser you shall be entitled to purchase Notes under this Agreement or it you or its your nominee shall be the holder of any Notes, and to each other holder of any Notes:
(a) not later than two business days following the earlier to occur of (i) the fiftieth forty-fifth day after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided PROVIDED that so long as the Company is subject to the reporting provisions of the Exchange Act, the timely filing (including all permissible extension periods provided under Rule 12b-25 under the Exchange Act) and the delivery of copies of the Company's quarterly report on Form 10-Q or 10-QSB for such period will satisfy the requirements of this paragraph (a);
(b) not later than two business days following the earlier to occur of (i) the one hundred twentieth ninetieth day after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP Ernst & Young L.L.P. or other reputable firm of "Big Five" independent public accountants reasonably satisfactory to the Purchasersaccountants, which report shall state that such consolidated financial statements present fairly the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided PROVIDED that so long as the Company is subject to the reporting provisions of the Exchange Act, the timely filing (including all permissible extension periods provided under Rule 12B-25 under the Exchange Act) and the delivery of copies of the Company's annual report on Form 10-K or Form 10-KSB for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, and (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.;
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon within two business days following any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon within two business days following any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) non-exempt "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) PROVIDED that, with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, such written notice need be given only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;; and
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Eco Soil Systems Inc)
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate), or, with respect to any company public reporting entity, timely file the Company’s report on Form 10-K, Form 10-Q and Form 8-K with the SEC, and make such Forms available on “XXXXX” and on its home page on the worldwide web (at the date of this Agreement located at: http//xxx.xxxxxx.xxx) and shall have given each Purchaser prior notice of such availability on XXXXX and on its home page in connection with each delivery, to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any NotesBonds, and to each other holder Institutional Holder of any Notesat least 5% in principal amount of the Bonds at the time outstanding:
(a) not later than the earlier to occur of as soon as available but in any event within ninety (i90) the fiftieth day days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such period period, and the related consolidated statements a statement of income, stockholders' equity earnings and cash flows retained earnings of the Company and its Subsidiaries for such period and (in for the case portion of the second and third quarterly periods) fiscal year ending with such period, together with a statement of cash flows for the period from the beginning portion of the current fiscal year to the end of ending with such quarterly period, in each case setting forth in each case in comparative form the consolidated figures for the corresponding periods period of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereincertified, subject to changes resulting from normal year-end and audit adjustments; provided that so long as , by the Company is subject to the reporting provisions of the Exchange ActTreasurer, timely delivery of copies an Assistant Treasurer or any Vice President of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the as soon as available but in any event within one hundred twentieth day twenty (120) days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such year year, and the related a consolidated statements statement of income, stockholders' equity earnings and retained earnings and cash flows of the Company and its Subsidiaries for such fiscal yearCompany, setting forth in each case setting forth in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO XxxxxxxXxxxxxxx & Company, LLP P.C. or other reputable firm of independent public accountants reasonably satisfactory of recognized national standing selected by the Company to the Purchasers, which report shall state effect that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior years fiscal year (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present, in all material respects, the financial position of the Company as of the end of such year and the results of operations for such year, and that the audit examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) as soon as available but in any event within ninety (90) days after the end of each of the first three quarterly fiscal periods in each year of Unitil, a consolidated balance sheet of Unitil and its consolidated subsidiaries at the end of such period, and a consolidated statement of earnings and retained earnings of Unitil and its consolidated subsidiaries for such period and for the portion of the fiscal year ending with such period, together with a consolidated statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer, an Assistant Treasurer or any Vice President of Xxxxxx;
(d) as soon as available but in any event within one hundred twenty (120) days after the end of each fiscal year of Unitil, an audited consolidated balance sheet of Unitil and its consolidated subsidiaries as at the end of such year, and an audited consolidated statement of earnings and retained earnings and cash flows of Unitil and its consolidated subsidiaries, in each case setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of Xxxxxxxx & Company, P.C. or other independent public accountants of recognized national standing selected by Unitil to the effect that such financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal year (except for such changes, if any, as may be specified in such opinion) and fairly present, in all material respects, the financial position of Unitil and its consolidated subsidiaries as of the end of such year and the results of operations for such year, and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(e) concurrently with delivery of financial statements pursuant to subdivisions (athe documents provided for in Sections 9.1(a) and (b) of this section 7), an Officers' Certificate (i) Officer’s Certificate, stating that the signers have officer providing the certificate has reviewed the terms provisions of this Agreement and setting forth whether there existed as of the Notes date of such financial statements and have madewhether, or caused to be made under their supervisionthe best of such officer’s knowledge, a review in reasonable detail there exists on the date of the transactions and condition of the Company and its Subsidiaries certificate or existed at any time during the accounting period covered by such financial statements and that such review has not disclosed the existence during any Default 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 Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, orand, if any such condition or event existed or existsexists on the date of the certificate, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(if) promptly upon any principal officer after the same are available, copies of all proxy statements, financial statements and reports as the Company or any other officer its parent shall send to its public stockholders, and copies of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability all reports which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of its parent may file with the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company SEC or any of its Subsidiaries as from governmental authority at any time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretosubstituted therefor; and
(lg) promptly upon any principal officer such other information relating to the affairs of the Company obtaining knowledge of as any dispute which may exist between the Company Purchaser or any Subsidiary and any governmental authority which such holder reasonably may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes request from time to take with respect theretotime.
Appears in 1 contract
Samples: Bond Purchase Agreement
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principlesGAAP, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principlesGAAP. The Company will deliver (in duplicate) to each of the Purchasersyou, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement you or it or its your nominee shall be the holder of any Notes, and to each other holder of Institutional Investor holding any Notes:
(a) not later than the earlier to occur of (i) the fiftieth day as soon as practicable, but in any event within 45 days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated and consolidating balance sheets of the Company and its Subsidiaries (except, as to consolidating balance sheets only, for inactive Subsidiaries) as at the end of such period and the related consolidated (and, as to statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);consolidating,
(b) not later than the earlier to occur of (i) the one hundred twentieth day as soon as practicable, but in any event within 90 days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated and consolidating balance sheets of the Company and its Subsidiaries (except, as to consolidating balance sheets only, for inactive Subsidiaries) as at the end of such year and the related consolidated (and, as to statements of income, stockholdersconsolidating, except for inactive Subsidiaries) statements of income, partners' equity capital and cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the consolidated and, where applicable, consolidating figures for the previous fiscal year, all in reasonable detail and (i) in the case of such consolidated financial statements, accompanied by a report thereon of BDO Xxxxxxx, LLP or Arthxx Xxxexxxx xx other reputable firm of independent public accountants reasonably satisfactory to of recognized national standing selected by the PurchasersCompany, which report shall state that such consolidated financial statements present fairly fairly, in all material respects, the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) GAAP and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as standards then in effect in the Company is subject to United States of America, and, (ii) in the reporting provisions case of such consolidated and consolidating financial statements certified by the principal financial officer of the Exchange ActGeneral Partner as presenting fairly, timely delivery in all material respects, the information contained therein (except, in the case of copies such consolidating financial statements, for the absence of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (bfootnotes), in accordance with GAAP;
(c) together with each delivery of financial statements of the Company pursuant to subdivisions (a) and (b) of this section SECTION 7, an Officers' Certificate of the Company (i) stating that the signers have reviewed the terms of this Agreement and of the Notes other Financing Documents, 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 periodstatements, and that the signers do not have knowledge of the existence and continuance as at the date of the such Officers' Certificate, Certificate of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any of the signers have knowledge that any such condition Default or event existed or Event of Default then exists, specifying the nature and approximate period of existence thereof and what action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and specifying the amount available at the end of such accounting period for Restricted Payments in compliance with the restrictions contained SECTION 10.4 and showing in sections 10.1, 10.2 and 10.3reasonable detail all calculations required in arriving at such amount, (iii) setting forth demonstrating in comparative form reasonable detail compliance at the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.end
(d) together with each delivery of consolidated financial statements of the Company pursuant to subdivision (b) of this section SECTION 7, a written statement by the independent public accountants giving the report thereon (i) stating that their audit examination has included a review of they have reviewed the terms of this Agreement and the Notes and that, in making the audit necessary for the certification of such financial statements, they have obtained no knowledge of the Notes existence and continuance as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of at the date of such written statement, they have knowledge) of the existence statement of any condition or event which constitutes an Event of Default or Potential Event of Default, andor, if sothey have obtained knowledge that any Default or Event of Default then exists, specifying specifying, to the extent possible, the nature and approximate period of the existence thereofthereof (such accountants, and (iii) stating that they have examined however, shall not be liable to anyone by reason of their failure to obtain knowledge of any Default or Event of Default which would not be disclosed in the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) course of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated an audit conducted in accordance with generally accepted auditing standards then in effect in the terms United States of this AgreementAmerica);
(e) in addition to promptly following the financial statements required receipt and timely review thereof by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereofCompany, copies of all final reports submitted to the Company by independent public accountants in connection with each annualspecial, annual or interim or special audit of the books of the Company or any Subsidiary thereof made by such accountants, including, including without limitation, limitation the comment letter submitted by each such accountants accountant to management in connection with their annual audit;
(gf) promptly upon their becoming publicly available, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by the Company or the Public Partnership to any of its security holders in compliance with the Exchange Act, or any comparable Federal or state laws relating to the disclosure by any Person of information to its public security holders, of (ii) all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary the Public Partnership with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functionsfunctions (other than registration statements on Form S8 and Annual Reports on Form 11K), and of (iii) all press releases and other similar written statements made available generally by the Company or any Subsidiary the Public Partnership to the public concerning material -26- 27 developments in the business of the Company or the Public Partnership, as the case may be and (iv) all reports, notices and other similar written statements sent or made available by the Company or the Public Partnership to any holder of its SubsidiariesIndebtedness pursuant to the terms of any agreement, indenture or other instrument evidencing such Indebtedness, including without limitation the Credit Agreement and the Public Partnership Indenture, except to the extent the same substantive information is already being sent to you or such Institutional Investor, as the case may be;
(g) as soon as reasonably practicable, and in any event within five Business Days after a Responsible Officer obtains knowledge that any Default or Event of Default has occurred, a written statement of such Responsible Officer setting forth details of such Default or Event of Default and the action which the Company has taken, is taking and proposes to take with respect thereto;
(h) promptly upon as soon as reasonably practicable, and in any event within five Business Days after a Responsible Officer obtains knowledge of (i) the occurrence of an adverse development with respect to any litigation or proceeding involving the Company or any of its Subsidiaries which in the reasonable judgment of the Company presents a reasonable likelihood of having a Material Adverse Effect or (ii) the commencement of any litigation or proceeding involving the Company or any of its Subsidiaries which in the reasonable judgment of the Company presents a reasonable likelihood of having a Material Adverse Effect, a written notice of such Responsible Officer describing in reasonable detail such commencement of, or adverse development with respect to, such litigation or proceeding;
(i) as soon as reasonably practicable, and in any event within five Business Days after a Responsible Officer obtains knowledge that any of the events or conditions specified below with respect to any Plan has occurred or exists, or is expected to occur or exist, and that such event or condition has resulted, or in the opinion of the principal financial officer of the General Partner, is expected to result, in a Material Adverse Effect, a statement setting forth details respecting such event or condition and the action, if any, that the Company or any Related Person has taken, is taking or proposes to take or cause to be taken with respect thereto (and a copy of any notice, report or other written communication filed with or given to or received from the PBGC, the Internal Revenue Service or the Department of Labor with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and the regulations issued thereunder;
(ii) the filing under Section 4041 of ERISA of a notice of intent to terminate any Plan or the termination of any Plan;
(iii) a substantial cessation of operations within the meaning of Section 4062(e) of ERISA under circumstances which could result in the treatment of the Company or any Related Person as a substantial employer under
(iv) the institution by the PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any Related Person of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan;
(v) the complete or partial withdrawal by the Company or any Related Person under Section 4063, 4203 or 4205 of ERISA from a Plan which is a "multiple employer plan" or a Multiemployer Plan, or the receipt by the Company or any Related Person of notice from a Multiemployer Plan that it intends to impose withdrawal liability on the Company or any Related Person or that it is in reorganization or is insolvent within the meaning of Section 4241 or 4245 of ERISA or that it intends to terminate under Section 4041A of ERISA or from a "multiple employer plan" that it intends to terminate;
(vi) the institution of a proceeding against the Company or any Related Person to enforce Section 515 of ERISA;
(vii) the occurrence or existence of any event or series of events which could be expected to result in a liability to the Company or any Related Person pursuant to Section 4069(a) or 4212(c) of ERISA;
(viii) the failure to make a contribution to any Plan, which failure, either alone or when taken together with any other officer such failure, is sufficient to result in the imposition of a lien on any property of the Company involved or any Related Person pursuant to Section 302(f) of ERISA or Section 412(n) of the Code;
(ix) the amendment of any Plan in its financial administration obtaining a manner which would be treated as a termination of such Plan under section 4041(e) of ERISA or require the Company or any Related Person to provide security to such Plan pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code; or
(x) the incurrence of liability in connection with the occurrence of a "prohibited transaction" (within the meaning of Section 406 of ERISA or Section 4975 of the Code);
(j) as soon as reasonably practicable, and in any event within five Business Days after a Responsible Officer obtains knowledge of a violation or alleged violation of Environmental Law or the presence or release of any condition Hazardous Substance within, on, from, relating to or affecting any property, which in the reasonable judgment of the Company presents a reasonable likelihood of having a Material Adverse Effect, notice thereof, and upon request, copies of relevant documentation, provided, however, no such -28- 29 notice is required with respect to matters for which notice has previously been provided pursuant to this SECTION 7(j);
(k) within 15 days after being approved by the governing body of the Company, an annual operating forecast for each fiscal year;
(l) as soon as reasonably practicable, and in any event which constitutes an Event of Default or Potential Event of Default, or within five Business Days after a Responsible Officer obtains knowledge that the holder of any Note has given any notice to the Company or any Subsidiary thereof or taken any other action with respect to a claimed Event of Default or Potential Event of Default under this Agreement or any Other Agreements, or that any Person has given any notice to the Company or any such Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section SECTION 11(f), an Officers' Certificate a written statement of such Responsible Officer describing the same such notice or other action in reasonable detail and the period of existence thereof and what action which the Company has taken, is taking and proposes to take with respect thereto;; and
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(jm) with reasonable promptness, such other financial reports and information and data (financial or other) with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principlesGAAP. The Company will deliver (in duplicate) to each of the Purchasersyou, so long as each such Purchaser you shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of hold any Notes, and to each other holder of any NotesDebentures:
(a) not later than as soon as practicable, and, in any case, within ninety (90) days after the earlier to occur close of each fiscal year, two (i2) copies of the fiftieth day consolidated balance sheet of the Company and its Subsidiaries setting forth their consolidated financial condition as at the
(a) for such fiscal year;
(b) as soon as practicable and, in any case, within sixty (60) days after the end of each of the first three first, second and third quarterly fiscal accounting periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commissionyear, an unaudited consolidated balance sheets sheet of the Company and its Subsidiaries as at the end of such period accounting period, and the related unaudited consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly perioddate, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal yeara year earlier, all in reasonable detail detail, prepared and certified by a principal financial officer the Treasurer or the Controller or any Vice President of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence fairly such financial condition and results of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereinoperations, subject to changes resulting from normal year-end audit adjustments; provided that so long as that, delivery within the Company is subject to time period specified above (or, if later, within five (5) days of timely filing with the reporting provisions of the Exchange Act, timely delivery Commission) of copies of the Company's quarterly report Quarterly Report on Form 10-Q for such any quarterly accounting period will prepared in compliance with the requirements thereof and filed with the -18- Commission shall be deemed to satisfy the requirements of this paragraph (a);
(bSection 7.1(b) not later than the earlier to occur of (i) the one hundred twentieth day after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP or other reputable firm of independent public accountants reasonably satisfactory to the Purchasers, which report shall state that such consolidated financial statements present fairly the 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 generally accepted quarterly accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b)period;
(c) together with each delivery promptly after the submission thereof to the Company, copies of financial statements pursuant all communications prepared by independent accountants regarding matters of material weakness of internal accounting controls submitted to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for senior management, its Board of Directors or the accounting period covered audit committee of its Board of Directors, as contemplated by such financial statements and (iv) setting forth the amount American Institute of the Investment Basket as Certified Public Accountants Statement of the end of the accounting period covered by such financial statements.Auditing Standards No. 60;
(d) together with each delivery promptly upon distribution thereof, copies of all such financial or other statements, including proxy statements pursuant and reports, as the Company shall send to subdivision (b) the holders of this section 7, a written statement by its Common Stock or the independent public accountants giving the report thereon (i) stating that their audit examination has included a review holders of the terms of this Agreement and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this AgreementSenior Notes;
(e) in addition to the financial promptly after filing thereof, copies of all regular and periodic reports and registration statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets of which the Company and its Subsidiaries as at may file with the end of such month and the related consolidated Commission, other than registration statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustmentsForm S-8;
(f) promptly upon receipt thereof, copies of all final reports submitted any notices received from any administrative official or agency relating to the Company by independent public accountants in connection with each annualany order, interim ruling, statute or special audit of the books of the Company other law or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;information which might have or cause a Material Adverse Effect; and
(g) promptly upon their becoming availablerequest therefor, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary such information as to the public concerning material developments in the business and properties of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or you may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon request. Notwithstanding any principal officer other provision of this Section 7.1, the Company obtaining knowledge will be required to deliver to BAe and Matra only, and not to any other holder of any action or proceeding which has been commenced or threatened against Debentures, the materials specified in paragraphs (a), (b), (c), (f) and (g). The Company or any Subsidiary will deliver (in duplicate) to each holder of Debentures (other than BAe and which, if adversely determined, would have a material adverse effect on Matra) the Company materials specified in paragraphs (d) and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoe).
Appears in 1 contract
Samples: Debenture Purchase Agreement (Orion Newco Services Inc)
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate), or, with respect to any company public reporting entity, timely file the Company’s report on Form 10-K, Form 10-Q and Form 8-K with the SEC, and make such Forms available on “XXXXX” and on its home page on the worldwide web (at the date of this Agreement located at: http//xxx.xxxxxx.xxx) and shall have given each Purchaser prior notice of such availability on XXXXX and on its home page in connection with each delivery, to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any NotesBonds, and to each other holder Institutional Holder of any Notesat least 5% in principal amount of the Bonds at the time outstanding:
(a) not later than the earlier to occur of as soon as available but in any event within ninety (i90) the fiftieth day days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such period period, and the related consolidated statements a statement of income, stockholders' equity earnings and cash flows retained earnings of the Company and its Subsidiaries for such period and (in for the case portion of the second and third quarterly periods) fiscal year ending with such period, together with a statement of cash flows for the period from the beginning portion of the current fiscal year to the end of ending with such quarterly period, in each case setting forth in each case in comparative form the consolidated figures for the corresponding periods period of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereincertified, subject to changes resulting from normal year-end and audit adjustments; provided that so long as , by the Company is subject to the reporting provisions of the Exchange ActTreasurer, timely delivery of copies an Assistant Treasurer or any Vice President of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the as soon as available but in any event within one hundred twentieth day twenty (120) days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such year year, and the related a consolidated statements statement of income, stockholders' equity earnings and retained earnings and cash flows of the Company and its Subsidiaries for such fiscal yearCompany, setting forth in each case setting forth in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO XxxxxxxXxxxxxxx & Company, LLP P.C. or other reputable firm of independent public accountants reasonably satisfactory of recognized national standing selected by the Company to the Purchasers, which report shall state effect that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior years fiscal year (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present, in all material respects, the financial position of the Company as of the end of such year and the results of operations for such year, and that the audit examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) as soon as available but in any event within ninety (90) days after the end of each of the first three quarterly fiscal periods in each year of Unitil, a consolidated balance sheet of Unitil and its consolidated subsidiaries at the end of such period, and a consolidated statement of earnings and retained earnings of Unitil and its consolidated subsidiaries for such period and for the portion of the fiscal year ending with such period, together with a consolidated statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer, an Assistant Treasurer or any Vice President of Unitil;
(d) as soon as available but in any event within one hundred twenty (120) days after the end of each fiscal year of Unitil, an audited consolidated balance sheet of Unitil and its consolidated subsidiaries as at the end of such year, and an audited consolidated statement of earnings and retained earnings and cash flows of Unitil and its consolidated subsidiaries, in each case setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of Xxxxxxxx & Company, P.C. or other independent public accountants of recognized national standing selected by Unitil to the effect that such financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal year (except for such changes, if any, as may be specified in such opinion) and fairly present, in all material respects, the financial position of Unitil and its consolidated subsidiaries as of the end of such year and the results of operations for such year, and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(e) concurrently with delivery of financial statements pursuant to subdivisions (athe documents provided for in Sections 9.1(a) and (b) of this section 7), an Officers' Certificate (i) Officer’s Certificate, stating that the signers have officer providing the certificate has reviewed the terms provisions of this Agreement and setting forth whether there existed as of the Notes date of such financial statements and have madewhether, or caused to be made under their supervisionthe best of such officer’s knowledge, a review in reasonable detail there exists on the date of the transactions and condition of the Company and its Subsidiaries certificate or existed at any time during the accounting period covered by such financial statements and that such review has not disclosed the existence during any Default 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 Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, orand, if any such condition or event existed or existsexists on the date of the certificate, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(if) promptly upon any principal officer after the same are available, copies of all proxy statements, financial statements and reports as the Company or any other officer its parent shall send to its public stockholders, and copies of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability all reports which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of its parent may file with the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company SEC or any of its Subsidiaries as from governmental authority at any time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretosubstituted therefor; and
(lg) promptly upon any principal officer such other information relating to the affairs of the Company obtaining knowledge of as any dispute which may exist between the Company Purchaser or any Subsidiary and any governmental authority which such holder reasonably may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes request from time to take with respect theretotime.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any Notes, and to each other holder Institutional Holder of any Notesat least 5% in principal amount of the Notes at the time outstanding:
(a) not later than the earlier to occur of as soon as available but in any event within ninety (i90) the fiftieth day days after the end of each of the first three quarterly fiscal periods in each year of the Company, a consolidated balance sheet of the Company and its Subsidiaries at the end of such period, and a consolidated statement of earnings and retained earnings of the Company and its Subsidiaries for such period and for the portion of the fiscal year ending with such period, together with a statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer or an Assistant Treasurer of the Company;
(b) as soon as available but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, a consolidated balance sheets sheet of the Company and its Subsidiaries as at the end of such period year, and the related a consolidated statements statement of income, stockholders' equity earnings and retained earnings and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly periodSubsidiaries, setting forth in each case setting forth in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth day after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP Xxxxx Xxxxxxxx L.L.P. or other reputable firm of independent public accountants reasonably satisfactory of recognized national standing selected by the Company to the Purchasers, which report shall state effect that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior years fiscal year (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the end of such year and the consolidated results of operations for such year, and that the audit examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) as soon as available but in any event within ninety (90) days after the end of each of the first three quarterly fiscal periods in each year of Unitil, a balance sheet of Unitil at the end of such period, and a statement of earnings and retained earnings of Unitil for such period and for the portion of the fiscal year ending with such period, together with a statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer, an Assistant Treasurer or any Vice President of Unitil;
(d) as soon as available but in any event within one hundred twenty (120) days after the end of the fiscal year of Unitil, a balance sheet of Unitil as at the end of such year, and a consolidated statement of earnings and retained earnings and cash flows of Unitil, in each case setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of Xxxxx Xxxxxxxx or other independent public accountants of recognized national standing selected by Unitil to the effect that such financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal year (except for such changes, if any, as may be specified in such opinion) and fairly present, in all material respects, the financial position of Unitil as of the end of such year and the results of operations for such year, and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(e) concurrently with delivery of financial statements pursuant to subdivisions (athe documents provided for in Sections 12.1(a) and (b) of this section 7), an Officers' Certificate (i) Officer’s Certificate, stating that the signers have officer providing the certificate has reviewed the terms provisions of this Agreement and setting forth whether there existed as of the Notes date of such financial statements and have madewhether, or caused to be made under their supervisionthe best of such officer’s knowledge, a review in reasonable detail there exists on the date of the transactions and condition of the Company and its Subsidiaries certificate or existed at any time during the accounting period covered by such financial statements and that such review has not disclosed the existence during any Default 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 Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, orand, if any such condition or event existed or existsexists on the date of the certificate, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(if) promptly upon any principal officer after the same are available, copies of all proxy statements, financial statements and reports as the Company or any other officer its parent shall send to its public stockholders, and copies of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability all reports which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of its parent may file with the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company SEC or any of its Subsidiaries as from governmental authority at any time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretosubstituted therefor; and
(lg) promptly upon any principal officer such other information relating to the affairs of the Company obtaining knowledge as the Purchaser or any such holder reasonably may request from time to time, including, without limitation, written verification (including computations) of any dispute which may exist between compliance by the Company or any Subsidiary and any governmental authority which may have a material adverse effect on with the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretorequirements of Section 11.3 through 11.4.
Appears in 1 contract
Samples: Note Agreement (Unitil Corp)
Accounting; Financial Statements and Other Information. The Company will maintain, maintain and will cause each of its Subsidiaries to maintain, maintain a uniform system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principlesprinciples ("GAAP"). The Company will deliver (in duplicate) to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any NotesHolder:
(a) not later than the earlier to occur of (i) the fiftieth day as soon as practicable after the end of each of the first three quarterly fiscal periods in of each fiscal year of the Company Xxxxxx, and (ii) the date of the filing thereof with the Securities in any event within 45 days thereafter, consolidating and Exchange Commission, consolidated balance sheets of the Company Xxxxxx and its Subsidiaries as at the end of such period and the related consolidating and consolidated statements of income, stockholders' equity income and of cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning portion of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a the principal financial officer of the Company as presenting fairlybeing complete and as fairly presenting, in accordance with generally accepted accounting principles (except GAAP, the financial position of Xxxxxx and its Subsidiaries and results of their operations for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereinperiod then ended, subject only to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth day as soon as practicable after the end of each fiscal year of the Company Xxxxxx, and (ii) the date of the filing thereof with the Securities in any event within 90 days thereafter, consolidating and Exchange Commission, consolidated balance sheets of the Company Xxxxxx and its Subsidiaries as at the end of such year and the related consolidating and consolidated statements of income, stockholders' equity income and of cash flows of the Company Xxxxxx and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and and, in the case of such consolidated statements, accompanied by a the report and opinion thereon of BDO Xxxxxxx, LLP or other reputable firm of independent public accountants of recognized national standing selected by Xxxxxx and reasonably satisfactory acceptable to the PurchasersHolder, which report opinion shall state that such consolidated financial statements present fairly the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made be prepared in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions standards and shall be based upon an examination by such accountants of the Exchange Act, timely delivery accounts of copies Xxxxxx and all of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b)its Subsidiaries;
(c) together with each delivery of financial statements pursuant referred to in subdivisions (a) and (b) of this section 7above, an Officers' Officer's Certificate of the Company (i) stating that each of the signers have has reviewed the relevant terms of this Agreement Note and of the Notes and have has made, or caused to be made under their his supervision, a an adequate review in reasonable detail of the transactions and condition of the Company Xxxxxx and its Subsidiaries during the accounting fiscal period covered by such financial statements and statements, (ii) stating that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not period nor does such signer have knowledge of the existence existence, as at the date of the Officers' Certificatesuch certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event Default existed or exists, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, and (iiiii) setting forth and demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions financial and restricted payment covenants contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.this Note;
(d) together with each delivery of financial statements pursuant referred to in subdivision (b) of this section 7above, a written statement certificate by the independent public accountants giving the report thereon reporting on such financial statements (provided that such accountants shall not be required to go beyond normal auditing procedures to make such statement) (i) briefly setting forth the scope of their examination (which shall have been made in accordance with generally accepted auditing standards) and stating that in their audit judgment such examination has included a review of the terms of this Agreement and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required)render such certificate, (ii) stating whether, in the course of whether or not their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of examination has disclosed the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and and
(iii) stating that they have examined covering the Officers' Certificate delivered matters referred to in connection therewith pursuant to clause (iii) of subdivision (c) of this section 7 and that above with respect to the matters set forth in fiscal year covered by such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreementfinancial statements;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports reports, if any, submitted to the Company by independent public accountants in connection with each annual, annual or interim or special audit of the books of the Company or any Subsidiary of its Subsidiaries made by such accountants;
(f) prompt written notice of (i) any litigation involving a claim of more than $200,000 against the Company or any of its Subsidiaries, includingor (ii) any matter which, without limitationin the opinion of the Company, might have a materially adverse effect on the comment letter submitted by such accountants to management in connection with their annual auditoperations, business condition (financial or otherwise), affairs or prospects of the Company or any of its Subsidiaries (a "Material Adverse Effect");
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly forthwith upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential any Event of Default, or that a certificate of such officer specifying the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same nature and the period of existence thereof and what action the Company has taken, is taking and or proposes to take with respect thereto;
(ih) promptly upon any principal officer concurrently with the transmittal thereof, copies of all information provided under Section 5.1 of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any Credit Agreement; and
(i) "reportable event"as soon as practicable, as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, all such other financial reports and information and data with respect to the business, affairs or condition of the Company or any of its Subsidiaries as from time to time may reasonably be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretorequested by Holder.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, maintain a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of set aside on its Subsidiaries to accrue, books all such liabilities proper reserves as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any NotesNote, and to each other holder of any Notesat least 5% in principal amount of the Notes at the time outstanding:
(a) not later than the earlier to occur of (i) the fiftieth day as soon as available but in any event within 45 days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and Company, (iii) the date of the filing thereof with the Securities and Exchange Commission, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such period, (ii) a statement of income and retained earnings of the Company for such year-to-date period and for the related consolidated statements twelve months then ended and (iii) a statement of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the year-to-date period from the beginning of the current fiscal year to the end of such quarterly periodthen ended, in each case, setting forth in each case in comparative form the consolidated figures for the corresponding periods period of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereincertified, subject to changes resulting from normal year-end audit adjustments; provided that so long , as the Company is subject to the reporting provisions presenting fairly such financial condition, results of operations and cash flows, by any one of the Exchange Actfollowing: the President, timely delivery of copies a Vice President, the Treasurer, an Assistant Treasurer or the Controller of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth day as soon as available but in any event within 90 days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such year year, and the related consolidated statements a statement of income, stockholders' equity income and of retained earnings and cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report the opinion thereon of BDO Xxxxxxx, LLP Coopers & Xxxxxxx L.L.P. or of other reputable firm of independent public accountants reasonably satisfactory to of recognized national standing selected by the PurchasersCompany, which report opinion shall state that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal years (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present the financial position of the Company as at the end of such year and the results of its operations and cash flows for such year, which opinion shall not be qualified by reason of any limitation on such accountants imposed by the Company; and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions subdivision (a) and or (b) of this section 7above, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of the Notes and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions operations 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 at the date of the such Officers' Certificate, of any condition or event which constitutes or which, after notice or lapse of time or both, would constitute an Event of Default or Potential Event of Default, 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 respect thereto, and (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1Sections 11.5 through 11.10, 10.2 and 10.3inclusive, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.hereof;
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7above, a written statement certificate by the independent public accountants giving the report opinion thereon stating (i) stating that their audit examination has included a review of the terms of this Agreement and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required)give such certificate, (ii) stating whether, in whether or not their examination has disclosed the course of their audit examination, they obtained knowledge existence during the fiscal year covered by such financial statements (and whether, stating whether or not they have knowledge of the existence as of at the date of such written statement, they have knowledgeaccountants' certificate) of the existence of any condition or event which constitutes or which, after notice or lapse of time or both, would constitute an Event of Default or Potential Event of Default, and, if sotheir examination has disclosed (or if they have knowledge of) such a condition or event, specifying the nature and period of existence thereof, thereof and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that above, confirming the matters set forth in such Officers' Certificate pursuant to clauses clause (ii) of such subdivision (c) and confirming that the calculations set forth in such Officers' Certificate demonstrating compliance with the restrictions referred to in clause (iiiii) of such subdivision (c) have been properly stated made in accordance with the terms provisions of this AgreementAgreement (it being understood that, to the extent such calculations are based on financial information as of a date other than the end of such fiscal year, such calculations will be based on amounts set forth in the Company's unaudited interim financial statements);
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final audit reports submitted to the Company by independent public accountants in connection with each annual, annual or interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(gf) promptly upon their becoming availablethe sending, making available or filing of the same, copies of all financial statements, including annual and quarterly reports, reports, notices and proxy statements sent or made available generally by the Company or the Parent to its public security holderstheir respective shareholders, and of all regular and periodic reports and all any registration statements and prospectuses statement or prospectus filed by the Company Company, the Parent and by any other corporation or any Subsidiary other entity which owns, directly or indirectly, a majority of the voting stock of the Company, with any securities exchange or with the Securities and Exchange Commission (or any Federal governmental authority body or agency succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries);
(hg) promptly forthwith upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which to such officer's knowledge constitutes or which, after notice or lapse of time or both, would constitute an Event of Default or Potential Event of Default, or becoming aware that the any holder of any a Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(fSections 13.1(f), 13.1(g), 13.1(h), 13.1(i) or 13.1(j), an Officers' Certificate describing specifying the same nature and the period of existence thereof and what action the Company has taken, taken or is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(lh) promptly upon with reasonable promptness, such other information and data with respect to the Company as from time to time may be reasonably requested by the Purchaser, so long as it or its nominee is the holder of any Note, or by any other holder of at least 5% in aggregate principal officer amount of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoNotes then outstanding.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, maintain a system of accounting established and administered in accordance with United States generally accepted accounting principlesprinciples ("U.S. GAAP"), and will accrue, and will cause each of set aside on its Subsidiaries to accrue, books all such liabilities proper reserves as shall be required by generally accepted accounting principlesU.S. GAAP. The Prior to the consummation of an Initial Public Offering, the Company will deliver (in duplicate) to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any NotesShareholder:
(a) not later than the earlier to occur of (i) the fiftieth day after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth day within 90 days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP or other reputable firm of independent certified public accountants reasonably satisfactory to of recognized standing selected by the Purchasers, Company which report shall state that such consolidated financial statements present fairly in all material respects the financial position of the Company and its Subsidiaries as at the dates indicated and the results of their its operations and their its cash flows for the periods indicated in conformity with generally accepted accounting principles U.S. GAAP applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 45 days after the end of each monthof the first three fiscal quarters of the Company, consolidated balance sheets of the Company and its Subsidiaries as at the end of such month quarter and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such monthquarter, setting forth forth, in each case in comparative form the consolidated form, figures for the corresponding periods of the previous fiscal yearquarter, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretodetail; and
(lc) promptly upon any principal officer within 90 days after the end of each fiscal year of the Company obtaining knowledge Company, a statement of any dispute which may exist between whether the Company believes, based upon reasonable inquiry, that it is or any Subsidiary and any governmental authority which may have is not a material adverse effect on "passive foreign investment company" for U.S. federal income tax purposes under the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoCode.
Appears in 1 contract
Samples: Shareholder Agreement (Allied World Assurance Holdings LTD)
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any NotesBonds, and to each other holder Institutional Holder of any Notesat least 5% in principal amount of the Bonds at the time outstanding:
(a) not later than the earlier to occur of as soon as available but in any event within ninety (i90) the fiftieth day days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such period period, and the related consolidated statements a statement of income, stockholders' equity earnings and cash flows retained earnings of the Company and its Subsidiaries for such period and (in for the case portion of the second and third quarterly periods) fiscal year ending with such period, together with a statement of cash flows for the period from the beginning portion of the current fiscal year to the end of ending with such quarterly period, in each case setting forth in each case in comparative form the consolidated figures for the corresponding periods period of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereincertified, subject to changes resulting from normal year-end and audit adjustments; provided that so long as , by the Company is subject to the reporting provisions of the Exchange ActTreasurer, timely delivery of copies an Assistant Treasurer or any Vice President of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the as soon as available but in any event within one hundred twentieth day twenty (120) days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such year year, and the related a consolidated statements statement of income, stockholders' equity earnings and retained earnings and cash flows of the Company and its Subsidiaries for such fiscal yearCompany, setting forth in each case setting forth in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP Gxxxx Xxxxxxxx or other reputable firm of independent public accountants reasonably satisfactory of recognized national standing selected by the Company to the Purchasers, which report shall state effect that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior years fiscal year (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present, in all material respects, the financial position of the Company as of the end of such year and the results of operations for such year, and that the audit examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) as soon as available but in any event within ninety (90) days after the end of each of the first three quarterly fiscal periods in each year of Unitil, a balance sheet of Unitil at the end of such period, and a statement of earnings and retained earnings of Unitil for such period and for the portion of the fiscal year ending with such period, together with a statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer, an Assistant Treasurer or any Vice President of Unitil;
(d) as soon as available but in any event within one hundred twenty (120) days after the end of each fiscal year of Unitil, a balance sheet of Unitil as at the end of such year, and a consolidated statement of earnings and retained earnings and cash flows of Unitil, in each case setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of Gxxxx Xxxxxxxx or other independent public accountants of recognized national standing selected by Unitil to the effect that such financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal year (except for such changes, if any, as may be specified in such opinion) and fairly present, in all material respects, the financial position of Unitil as of the end of such year and the results of operations for such year, and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(e) concurrently with delivery of financial statements pursuant to subdivisions (athe documents provided for in Sections 9.1(a) and (b) of this section 7), an Officers' Certificate (i) Officer's Certificate, stating that the signers have officer providing the certificate has reviewed the terms provisions of this Agreement and setting forth whether there existed as of the Notes date of such financial statements and have madewhether, or caused to be made under their supervisionthe best of such officer's knowledge, a review in reasonable detail there exists on the date of the transactions and condition of the Company and its Subsidiaries certificate or existed at any time during the accounting period covered by such financial statements and that such review has not disclosed the existence during any Default 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 Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, orand, if any such condition or event existed or existsexists on the date of the certificate, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(if) promptly upon any principal officer after the same are available, copies of all proxy statements, financial statements and reports as the Company or any other officer its parent shall send to its public stockholders, and copies of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability all reports which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of its parent may file with the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company SEC or any of its Subsidiaries as from governmental authority at any time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretosubstituted therefor; and
(lg) promptly upon any principal officer such other information relating to the affairs of the Company obtaining knowledge of any dispute which may exist between as the Company Purchaser or any Subsidiary and any governmental authority which such holder reasonably may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes request from time to take with respect theretotime.
Appears in 1 contract
Accounting; Financial Statements and Other Information. (a) The Company will maintain, and will cause each of its Subsidiaries to maintain, maintain a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principlesGAAP. The Company will deliver (in duplicate) to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any Notes:
(a) not later than the earlier to occur of (i) the fiftieth day after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that so long as Whenever the Company is not otherwise subject to the reporting provisions obligations of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period Company will satisfy the requirements of this paragraph (a);deliver to each Investor:
(b) not later than the earlier to occur of (i) the one hundred twentieth day within 90 days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP or other reputable firm of independent certified public accountants reasonably satisfactory to of recognized standing selected by the Purchasers, Company which report shall state that such consolidated financial statements present fairly in all material respects the financial position of the Company and its Subsidiaries as at the dates indicated and the results of their its operations and their its cash flows for the periods indicated in conformity with generally accepted accounting principles GAAP applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 45 days after the end of each monthfiscal quarter of the Company, consolidated balance sheets of the Company and its Subsidiaries as at the end of such month quarter and the related consolidated statements of income, stockholders' ’ equity and cash flows of the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such monthquarter, setting forth forth, in each case in comparative form the consolidated form, figures for the corresponding periods of the previous fiscal yearquarter, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;detail; and
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;requested by an Investor.
(kb) promptly upon any principal officer Each set of financial statements required to be provided by the Company obtaining knowledge of pursuant to this Section 9.1 shall be substantially in the form appropriate for inclusion in a filing on Form 10-K or Form 10-Q, as applicable, with the SEC pursuant to the Exchange Act, and shall be accompanied by a narrative report setting forth, in reasonable detail, for such period, any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on deviations by the Company and its Subsidiaries, taken as a whole, a written notice specifying Subsidiaries from the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoBusiness Plan.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, maintain a standard system of accounting accounting, established and administered in accordance with generally accepted accounting principlesGAAP consistently followed throughout the periods involved, and will accrueset aside on its books for each fiscal year the proper amounts for depreciation, obsolescence, amortization, bad debts, current and deferred taxes, and will cause each of its Subsidiaries to accrue, all such liabilities other purposes as shall be required by generally accepted accounting principlesGAAP. The Company will deliver (to Bank all in duplicate) form and substance satisfactory to each of the Purchasers, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be the holder of any Notes, and to each other holder of any NotesBank:
(a) not later than the earlier to occur of (i) the fiftieth day As soon as practicable after the end of each of the first three quarterly fiscal periods quarter in each fiscal year of year, except the Company and (ii) the date of the filing thereof last, commencing with the Securities fiscal quarter ended August 31, 2002 and Exchange Commissionin any event within forty five (45) days thereafter, consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated financial statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period quarter, certified as complete and (in correct by the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereinCompany, subject to changes resulting from normal year-end audit adjustments; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not Not later than August 15/th/ of each calendar year, a certificate on behalf of the earlier Company of the chief financial officer to occur the effect that, to the best knowledge of the Company, no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof and the actions the Company proposes to take with respect thereto, which certificate shall set forth the calculation of the Funded Debt Ratio as well as the calculations required to establish compliance with the provisions of Section 6.25 hereof;
(ic) the one hundred twentieth day As soon as practicable after the end of each fiscal year, commencing with the fiscal year ending on or about May 31, 2003 and in any event within one hundred twenty (120) days thereafter, (i) annual revenue and expense budget for the current fiscal year including the assumptions underlying the forecasts forming the basis thereof, and accounts receivable aging report, each prepared by Company, together with copies of the Company filed federal income tax returns including all schedules and (ii) the date annual statement of the filing thereof with the Securities and Exchange Commission, consolidated balance sheets condition of the Company and its Subsidiaries as at of the end of such year year, and the related consolidated statements of income, stockholders' equity and cash flows and changes in financial position and/or changes in fund balances as applicable of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and certified as complete and correct by the principal financial officer of Company, accompanied by a report thereon of BDO Xxxxxxx, LLP or other reputable firm and an unqualified opinion of independent certified public accountants reasonably of recognized standing, selected by Company and satisfactory to the PurchasersBank, which report shall state that such consolidated financial statements present fairly the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, opinion shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (audited and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustmentsprinciples;
(fd) promptly Promptly upon receipt thereof, copies of all final other written reports submitted to the Company by independent public accountants in connection with each annual, any annual or interim or special audit of the corporate books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;Company; and
(ge) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with With reasonable promptness, such other financial reports data and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and whichrequested by Bank, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoincluding Company's annual tax return.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the PurchasersPurchaser, so long as each such Purchaser shall be entitled to purchase Notes under this Agreement or it or its nominee shall be is the holder of any NotesBonds, and to each other holder Institutional Holder of any Notesat least 5% in principal amount of the Bonds at the time outstanding:
(a) not later than the earlier to occur of as soon as available but in any event within ninety (i90) the fiftieth day days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such period period, and the related consolidated statements a statement of income, stockholders' equity earnings and cash flows retained earnings of the Company and its Subsidiaries for such period and (in for the case portion of the second and third quarterly periods) fiscal year ending with such period, together with a statement of cash flows for the period from the beginning portion of the current fiscal year to the end of ending with such quarterly period, in each case setting forth in each case in comparative form the consolidated figures for the corresponding periods period of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained thereincertified, subject to changes resulting from normal year-end and audit adjustments; provided that so long as , by the Company is subject to the reporting provisions of the Exchange ActTreasurer, timely delivery of copies an Assistant Treasurer or any Vice President of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the as soon as available but in any event within one hundred twentieth day twenty (120) days after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange CommissionCompany, consolidated a balance sheets sheet of the Company and its Subsidiaries as at the end of such year year, and the related a consolidated statements statement of income, stockholders' equity earnings and retained earnings and cash flows of the Company and its Subsidiaries for such fiscal yearCompany, setting forth in each case setting forth in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of BDO Xxxxxxx, LLP Xxxxx Xxxxxxxx or other reputable firm of independent public accountants reasonably satisfactory of recognized national standing selected by the Company to the Purchasers, which report shall state effect that such consolidated financial statements present fairly the 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 have been prepared in conformity accordance with generally accepted accounting principles applied on a basis consistent with the prior years fiscal year (except for such changes, if any, as otherwise may be specified in such reportopinion) and fairly present, in all material respects, the financial position of the Company as of the end of such year and the results of operations for such year, and that the audit examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) as soon as available but in any event within ninety (90) days after the end of each of the first three quarterly fiscal periods in each year of Unitil, a balance sheet of Unitil at the end of such period, and a statement of earnings and retained earnings of Unitil for such period and for the portion of the fiscal year ending with such period, together with a statement of cash flows for the portion of the fiscal year ending with such period, in each case setting forth in comparative form figures for the corresponding period of the previous year, all in reasonable detail and certified, subject to changes resulting from year-end and audit adjustments, by the Treasurer, an Assistant Treasurer or any Vice President of Unitil;
(d) as soon as available but in any event within one hundred twenty (120) days after the end of each fiscal year of Unitil, a balance sheet of Unitil as at the end of such year, and a consolidated statement of earnings and retained earnings and cash flows of Unitil, in each case setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of Xxxxx Xxxxxxxx or other independent public accountants of recognized national standing selected by Unitil to the effect that such financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the prior fiscal year (except for such changes, if any, as may be specified in such opinion) and fairly present, in all material respects, the financial position of Unitil as of the end of such year and the results of operations for such year, and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(e) concurrently with delivery of financial statements pursuant to subdivisions (athe documents provided for in Sections 9.1(a) and (b) of this section 7), an Officers' Certificate (i) Officer's Certificate, stating that the signers have officer providing the certificate has reviewed the terms provisions of this Agreement and setting forth whether there existed as of the Notes date of such financial statements and have madewhether, or caused to be made under their supervisionthe best of such officer's knowledge, a review in reasonable detail there exists on the date of the transactions and condition of the Company and its Subsidiaries certificate or existed at any time during the accounting period covered by such financial statements and that such review has not disclosed the existence during any Default 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 Officers' Certificate, of any condition or event which constitutes an Event of Default or Potential Event of Default, orand, if any such condition or event existed or existsexists on the date of the certificate, specifying the nature and period of existence thereof and what the action the Company has taken or is taking or proposes to take with respect thereto, (ii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
(e) in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(if) promptly upon any principal officer after the same are available, copies of all proxy statements, financial statements and reports as the Company or any other officer its parent shall send to its public stockholders, and copies of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability all reports which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of its parent may file with the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company SEC or any of its Subsidiaries as from governmental authority at any time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretosubstituted therefor; and
(lg) promptly upon any principal officer such other information relating to the affairs of the Company obtaining knowledge of any dispute which may exist between as the Company Purchaser or any Subsidiary and any governmental authority which such holder reasonably may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes request from time to take with respect theretotime.
Appears in 1 contract
Accounting; Financial Statements and Other Information. The Company will maintain, and will cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with generally accepted accounting principles, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as shall be required by generally accepted accounting principles. The Company will deliver (in duplicate) to each of the Purchasersyou, so long as each such Purchaser you shall be entitled to purchase Notes under this Agreement or it you or its your nominee shall be the holder of any Notes, and to each other holder of any Notes:
(a) not later than the earlier to occur of (i) the fiftieth day after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, (x) consolidated balance sheets of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as presenting fairly, in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments, and (y) such supplemental profit and loss and balance sheet information by division and department in such detail as the holders of the Notes may request; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's quarterly report on Form 10-Q for such period will satisfy the requirements of this paragraph (a);
(b) not later than the earlier to occur of (i) the one hundred twentieth 105th day after the end of each fiscal year of the Company and (ii) the date of the filing thereof with the Securities and Exchange Commission, (x) consolidated balance sheets of the Company and its Subsidiaries as at the end of such 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 in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail detail, and accompanied by a report thereon of BDO Xxxxxxx, LLP Coopers & Xxxxxxx L.L.P or other reputable firm of 13 "Big Six" independent public accountants reasonably satisfactory to the Purchasersaccountants, which report shall state that such consolidated financial statements present fairly the 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 generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) such supplemental profit and loss and balance sheet information by division and department in such detail as the holders of the Notes may request; provided that so long as the Company is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Company's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (b);
(c) together with each delivery of financial statements pursuant to subdivisions (a) and (b) of this section 7, an Officers' Certificate (i) stating that the signers have reviewed the terms of this Agreement and of 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 at 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 or is taking or proposes to take with respect thereto, (ii) specifying the amount available at the end of such accounting period for Restricted Payments in compliance with section 10.4 and showing in reasonable detail all calculations required in arriving at such amount, and (iii) demonstrating in reasonable detail compliance during and at the end of such accounting period with the restrictions contained in sections 10.1, 10.2 and 10.3, (iii) setting forth in comparative form the consolidated figures contained in the Company's forecast for the accounting period covered by such financial statements 10.4, 10.5, 10.6 and (iv) setting forth the amount of the Investment Basket as of the end of the accounting period covered by such financial statements.10.9;
(d) together with each delivery of financial statements pursuant to subdivision (b) of this section 7, 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 and of the Notes as they relate to accounting matters and that such review is sufficient to enable them to make the statement referred to in clause (iii) of this subdivision sub- division (d) (it being understood that no special audit procedures, other than those required by generally accepted auditing standards, shall be required), (ii) stating whether, in the course of their audit examination, they obtained knowledge (and whether, as of the date of such written statement, they have knowledge) of the existence of any condition or event which constitutes an Event of Default or Potential Event of Default, and, if so, specifying the nature and period of existence thereof, and (iii) stating that they have examined the Officers' Certificate delivered in connection 14 therewith pursuant to subdivision (c) of this section 7 and that the matters set forth in such Officers' Certificate pursuant to clauses (ii) and (iii) of such subdivision (c) have been properly stated in accordance with the terms of this Agreement;
; (e) concurrently with the delivery thereof to other lenders or security holders of Xxxxx Mexico, quarterly and annual balance sheets of Xxxxx Mexico and the related statements of income, stockholders' equity and (annually) cash flows of Xxxxx Mexico for such period, all meeting substantially the same criteria as set forth in addition to the financial statements required by subdivisions (a) and (b) of this section 7.1, within 30 days after the end of each month, consolidated balance sheets 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 the Company and its Subsidiaries for such month and (in the case of the second through twelfth month of the fiscal year) for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by a principal financial officer of the Company as having been prepared in accordance with generally accepted accounting principles (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, subject to changes resulting from normal year-end audit adjustments;
(f) promptly upon receipt thereof, copies of all final reports submitted to the Company by independent public accountants in connection with each annual, interim or special audit of the books of the Company or any Subsidiary made by such accountants, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit;
(g) promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Company to its public security holders, of all regular and periodic reports and all registration statements and prospectuses filed by the Company or any Subsidiary with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any of its functions, and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning material developments in the business of the Company or its Subsidiaries;
(h) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of any condition or event which constitutes an Event of Default or Potential Event of Default, or that the holder of any Note 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 that any Person has given any notice to the Company or any Subsidiary or taken any other action with respect to a claimed default or event or condition of the type referred to in section 11(f), an Officers' Certificate describing the same and the period of existence thereof and what action the Company has taken, is taking and proposes to take with respect thereto;
(i) promptly upon any principal officer of the Company or any other officer of the Company involved in its financial administration obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in section 4975 of the Code, in connection with any Plan or any trust created thereunder, (iii) "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code) has been incurred with respect to a Plan, (iv) Plan having been terminated, reorganized or declared insolvent under Title IV of ERISA, (v) Plan having an unfunded current liability giving rise to a lien under ERISA or the Code, (vi) proceeding having been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan, (vii) liability which will or may be incurred by the Company or any Related Person under Section 4062, 4063, 4064 or 4975 of the Code or Section 409 or 502(i) of ERISA, a written notice specifying the nature thereof, what action the Company has taken, is taking and 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, provided that such written notice need be given (A) with respect to the occurrence of any "reportable event" as to which the PBGC has waived the 30-day reporting requirement, only at the time notice is given to the PBGC, and (B) with respect to the occurrences described in clauses (iii), (iv), (v), (vi) and (vii), only if such occurrences would have a material adverse effect on the Company and its Subsidiaries, taken as a whole;
(j) with reasonable promptness, such other financial reports and information and data with respect to the Company or any of its Subsidiaries as from time to time may be reasonably requested;
(k) promptly upon any principal officer of the Company obtaining knowledge of any action or proceeding which has been commenced or threatened against the Company or any Subsidiary and which, if adversely determined, would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect thereto; and
(l) promptly upon any principal officer of the Company obtaining knowledge of any dispute which may exist between the Company or any Subsidiary and any governmental authority which may have a material adverse effect on the Company and its Subsidiaries, taken as a whole, a written notice specifying the nature thereof and what action the Company has taken, is taking and proposes to take with respect theretoabove.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Dixon Ticonderoga Co)
