Common use of Covenants of Issuer Clause in Contracts

Covenants of Issuer. (a) So long as (x) the IPO shall not have occurred and (y) Holder owns at least 20% of the Warrants and/or Warrant Shares issued hereunder, the Issuer will furnish to such Holder: (i) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Issuer and its Subsidiaries, the consolidated balance sheet of the Issuer and its Subsidiaries, as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and from the projections from the current fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and certified without qualification as to the scope of the audit, by Ernst & Young L.L.P. or by other independent nationally recognized certified public accountants reasonably satisfactory to the Designated Holder; (ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries, copies of the unaudited consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow for such fiscal quarter and the portion of such Persons' fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the comparisons to the projections for such period, and the all in reasonable detail and prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial position of the Issuer and their Subsidiaries on the date thereof (subject to year-end adjustments); (iii) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Issuer and its Subsidiaries, unaudited monthly consolidated financial statements of the Issuer and its Subsidiaries for such month and the portion of such Person's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the projections for such period, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial condition of the Issuer and its Subsidiaries on the date thereof (subject to year-end adjustments); (iv) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries sales and Consolidated EBITDA statements on an individual Store-by-Store basis for each Store operated by the Issuer or any of its Subsidiaries, such statements to be in a form satisfactory to the Designated Holder; (v) promptly after the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Issuer or any of its Subsidiaries; (vi) within 45 days after the beginning of each fiscal year of the Issuer and from time to time upon request of the Designated Holder (but not more frequently than annually), projections and a budget of the Issuer and its Subsidiaries updating those projections and budget delivered to such Holder and referred to in Section 4.04(c) of the Subordinated Loan Agreement or, if applicable, updating any later such projections and budget delivered in response to a request pursuant to this Section 16(a)(vi); (vii) all information sent to directors of the Issuer or any of its Subsidiaries in their capacities as such regarding the opening of new Stores; (viii) all notices or other information sent to any of the Senior Lenders in its capacity as such; and (ix) from time to time such other financial data and information (including accountants' management letters) as such Holder may reasonably request. (b) Until the earlier of (i) the occurrence of the IPO or (ii) Holder shall hold Warrants or Warrant Shares representing less than 30% of the Warrants and/or Warrant Shares issued hereunder, the Issuer shall provide Holder with written notice of each meeting of the Board of Directors of the Issuer and of each of its Subsidiaries concurrently with notice to each of the Directors and permit one representative designated by the Holder and Blackstone to attend (without the authority to vote), such meeting, and shall pay the reasonable out-of-pocket costs and expenses of such representative in connection therewith; provided that such representative shall not be permitted to attend the portion of any such meeting, if any, during which there shall exist a conflict of interest arising out of Holder's ownership of Loans and other Obligations pursuant to the Subordinated Loan Agreement. (c) During the period Holder owns Warrants and/or Warrant Shares representing at least 30% of the Warrants issued hereunder, Holder shall have the right to consult with and advise the management of the Issuer with respect to any matters affecting the Issuer. (d) The Issuer shall not amend its Restated Certificate of Incorporation, By-laws or the terms of its capital stock, or enter into any new agreement, in any way that affects the economic terms of the Series A Preferred Stock or the Series B Preferred Stock in any way adverse to the holders of the Warrants (including amending any such terms to increase the liquidation preference, dividend rate or redemption price with respect thereto) without the consent of the Required Holders. (e) The Issuer will not, and will not permit any Subsidiary to, engage in any transaction with any Affiliate (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such Affiliate or, to the knowledge of the Issuer or any of its Subsidiaries, any corporation, partnership, trust or other entity in which any such Affiliate has a substantial interest or is an officer, director, trustee or partner, on terms less favorable to the Issuer or its Subsidiaries than would have been obtainable on an arm's-length basis in the ordinary course of business, provided that[^] the foregoing restriction shall not apply to (i) management fees and expenses payable to BRS, any BRS Affiliate, Xxxxxx Xxxx or any Xxxxxx Xxxx Affiliate in an aggregate amount not to exceed one percent (1%) of Consolidated EBITDA (calculated without including any Synergistic Add Backs) in any fiscal year and (ii) Investments permitted by Section 7.03(k) of the Subordinated Loan Agreement.

Covenants of Issuer. (a) So long as (x) the IPO shall not have occurred and (y) Holder owns at least 20% of the Warrants and/or Warrant Shares issued hereunder, the Issuer will furnish to such Holder: (i) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Issuer and its Subsidiaries, the consolidated balance sheet of the Issuer and its Subsidiaries, as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and from the projections from the current fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, . and certified without qualification as to the scope of the audit, by Ernst & Young L.L.P. or by other independent nationally recognized certified public accountants reasonably satisfactory to the Designated Holder; (ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries, copies of the unaudited consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow for such fiscal quarter and the portion of such Persons' fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the comparisons to the projections for such period, and the all in reasonable detail and prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial position of the Issuer and their Subsidiaries on the date thereof (subject to year-end adjustments); (iii) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Issuer and its Subsidiaries, unaudited monthly consolidated financial statements of the Issuer and its Subsidiaries for such month and the portion of such Person's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the projections for such period, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial condition of the Issuer and its Subsidiaries on the date thereof (subject to year-end adjustments); (iv) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries sales and Consolidated EBITDA statements on an individual Store-by-Store basis for each Store operated by the Issuer or any of its Subsidiaries, such statements to be in a form satisfactory to the Designated Holder; (v) promptly after the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Issuer or any of its Subsidiaries; (vi) within 45 days after the beginning of each fiscal year of the Issuer and from time to time upon request of the Designated Holder (but not more frequently than annually), projections and a budget of the Issuer and its Subsidiaries updating those projections and budget delivered to such Holder and referred to in Section 4.04(c) of the Subordinated Loan Agreement or, if applicable, updating any later such projections and budget delivered in response to a request pursuant to this Section 16(a)(vi); (vii) all information sent to directors of the Issuer or any of its Subsidiaries in their capacities as such regarding the opening of new Stores; (viii) all notices or other information sent to any of the Senior Lenders in its capacity as such; and (ix) from time to time such other financial data and information (including accountants' management letters) as such Holder may reasonably request. (b) Until the earlier of (i) the occurrence of the IPO or (ii) Holder shall hold Warrants or Warrant Shares representing less than 30% of the Warrants and/or Warrant Shares issued hereunder, the Issuer shall provide Holder with written notice of each meeting of the Board of Directors of the Issuer and of each of its Subsidiaries concurrently with notice to each of the Directors and permit one representative designated by the Holder and Blackstone to attend (without the authority to vote), such meeting, and shall pay the reasonable out-of-pocket costs and expenses of such representative in connection therewith; provided that such representative shall not be permitted to attend the portion of any such meeting, if any, during which there shall exist a conflict of interest arising out of Holder's ownership of Loans and other Obligations pursuant to the Subordinated Loan Agreement. (c) During the period Holder owns Warrants and/or Warrant Shares representing at least 30% of the Warrants issued hereunder, Holder shall have the right to consult with and advise the management of the Issuer with respect to any matters affecting the Issuer. (d) The Issuer shall not amend its Restated Certificate of Incorporation, By-By- laws or the terms of its capital stock, or enter into any new agreement, in any way that affects the economic terms of the Series A Preferred Stock or the Series B Preferred Stock in any way adverse to the holders of the Warrants (including amending any such terms to increase the liquidation preference, dividend rate or redemption price with respect thereto) without the consent of the Required Holders. (e) The Issuer will not, and will not permit any Subsidiary to, engage in any transaction with any Affiliate (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such Affiliate or, to the knowledge of the Issuer or any of its Subsidiaries, any corporation, partnership, . trust or other entity in which any such Affiliate has a substantial interest or is an officer, director, trustee or partner, on terms less favorable to the Issuer or its Subsidiaries than would have been obtainable on an arm's-length basis in the ordinary course of business, provided that[^] that the foregoing restriction shall not apply to (i) management fees and expenses payable to BRS, . any BRS Affiliate, Xxxxxx Xxxx or any Xxxxxx Xxxx Affiliate in an aggregate amount not to exceed one percent (1%) of Consolidated EBITDA (calculated without including any Synergistic Add Backs) in any fiscal year and (ii) Investments permitted by Section 7.03(k) of the Subordinated Loan Agreement.

Covenants of Issuer. In addition to its other agreements and covenants herein, Issuer agrees: (a) So long as that it shall at all times maintain, free from any subscription or preemptive rights, sufficient authorized but unissued Common Shares so that the Option may be exercised without additional authorization of Common Shares after giving effect to all other options, warrants, convertible securities and other rights of third parties to purchase Common Shares from Issuer or to cause Issuer to issue Common Shares; (xb) that it will not, by charter amendment or through reorganization, consolidation, merger, dissolution or sale of assets, or by any other voluntary act, avoid or seek to avoid the IPO shall not have occurred and (y) Holder owns at least 20% observance or performance of any of the Warrants and/or Warrant covenants, stipulations or conditions to be observed or performed hereunder by Issuer; (c) promptly to take all action as may from time to time be required (including complying with all applicable notification, filing reporting and waiting period requirements under the Hart-Scott-Rodino Act or othexxxxx, xxx xxxxxrating fully with Holder in preparing any applications or notices and providing such information to any regulatory authority as it may require) in order to permit Holder to exercise the Option and Issuer duly and effectively to issue Common Shares issued hereunderpursuant hereto and to protect the rights of Holder against dilution; and (d) it will forthwith following the execution of this Agreement make application, the Issuer will furnish and thereafter use its best efforts to such Holder: (i) as soon as practicablesecure the approval of The Toronto Stock Exchange (the "TSE") and the NASDAQ Market, but and any other stock exchange or market on which the Common Shares are listed or quoted for trading, in any event not later than ninety (90) days after the end of each fiscal year respect of the Issuer issuance and its Subsidiaries, the consolidated balance sheet exercise of the Issuer Option and its Subsidiaries, as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and from the projections from the current fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and certified without qualification as to the scope of the audit, by Ernst & Young L.L.P. or by other independent nationally recognized certified public accountants reasonably satisfactory to the Designated Holder; (ii) as soon as practicablecause the Common Shares to be issued pursuant to the Option to be conditionally approved for listing (to the extent they are not already so approved) on the TSE, but in any event not later than forty-five (45) days after the end of each NASDAQ Market and all other stock exchanges or markets on which such Common Shares are then listed or quoted for trading, subject to the usual conditions of the fiscal quarters of the Issuer and its Subsidiaries, copies of the unaudited consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow for such fiscal quarter and the portion of such Persons' fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of (orTSE and, in the case of the balance sheetNASDAQ Market, as of the end of) the previous fiscal year and the comparisons to the projections for such period, and the all in reasonable detail and prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial position of the Issuer and their Subsidiaries on the date thereof (subject to year-end adjustments); (iii) as soon as practicable, but in any event within thirty (30) days after the end official notice of each month in each fiscal year of the issuance. Issuer and its Subsidiaries, unaudited monthly consolidated financial statements of the Issuer and its Subsidiaries for such month and the portion of such Person's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the projections for such period, each prepared in accordance agrees to provide Grantee with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial condition of the Issuer and its Subsidiaries on the date thereof (subject to year-end adjustments); (iv) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries sales and Consolidated EBITDA statements on an individual Store-by-Store basis for each Store operated by the Issuer or any of its Subsidiaries, such statements to be in a form satisfactory to the Designated Holder; (v) promptly after the filing or mailing thereof, copies of all material of a financial nature filed correspondence with all stock exchanges or markets in connection with the Securities provisions of this paragraph and Exchange Commission or sent to provide Grantee with the stockholders opportunity to participate in the process of the Issuer or any of its Subsidiaries; (vi) within 45 days after the beginning of each fiscal year of the Issuer and from time to time upon request of the Designated Holder (but not more frequently than annually), projections and a budget of the Issuer and its Subsidiaries updating those projections and budget delivered to such Holder and referred to in Section 4.04(c) of the Subordinated Loan Agreement or, if applicable, updating any later such projections and budget delivered in response to a request pursuant to this Section 16(a)(vi); (vii) all information sent to directors of the Issuer or any of its Subsidiaries in their capacities as such regarding the opening of new Stores; (viii) all notices or other information sent to any of the Senior Lenders in its capacity as such; and (ix) from time to time such other financial data and information (including accountants' management letters) as such Holder may reasonably request. (b) Until the earlier of (i) the occurrence of the IPO or (ii) Holder shall hold Warrants or Warrant Shares representing less than 30% of the Warrants and/or Warrant Shares issued hereunder, the Issuer shall provide Holder with written notice of each meeting of the Board of Directors of the Issuer and of each of its Subsidiaries concurrently with notice to each of the Directors and permit one representative designated by the Holder and Blackstone to attend (without the authority to vote), such meetingobtaining, and shall pay the reasonable out-of-pocket costs and expenses of any proceedings relating to obtaining, all such representative in connection therewith; provided that such representative shall not be permitted to attend the portion of any such meeting, if any, during which there shall exist a conflict of interest arising out of Holder's ownership of Loans and other Obligations pursuant to the Subordinated Loan Agreementapprovals. (c) During the period Holder owns Warrants and/or Warrant Shares representing at least 30% of the Warrants issued hereunder, Holder shall have the right to consult with and advise the management of the Issuer with respect to any matters affecting the Issuer. (d) The Issuer shall not amend its Restated Certificate of Incorporation, By-laws or the terms of its capital stock, or enter into any new agreement, in any way that affects the economic terms of the Series A Preferred Stock or the Series B Preferred Stock in any way adverse to the holders of the Warrants (including amending any such terms to increase the liquidation preference, dividend rate or redemption price with respect thereto) without the consent of the Required Holders. (e) The Issuer will not, and will not permit any Subsidiary to, engage in any transaction with any Affiliate (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such Affiliate or, to the knowledge of the Issuer or any of its Subsidiaries, any corporation, partnership, trust or other entity in which any such Affiliate has a substantial interest or is an officer, director, trustee or partner, on terms less favorable to the Issuer or its Subsidiaries than would have been obtainable on an arm's-length basis in the ordinary course of business, provided that[^] the foregoing restriction shall not apply to (i) management fees and expenses payable to BRS, any BRS Affiliate, Xxxxxx Xxxx or any Xxxxxx Xxxx Affiliate in an aggregate amount not to exceed one percent (1%) of Consolidated EBITDA (calculated without including any Synergistic Add Backs) in any fiscal year and (ii) Investments permitted by Section 7.03(k) of the Subordinated Loan Agreement.

Covenants of Issuer. (a) So long as (x) the IPO shall not have occurred and (y) Holder owns at least 20% of the Warrants and/or Warrant Shares issued hereunder, the Issuer will furnish to such Holder: (i) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Issuer and its Subsidiaries, the consolidated balance sheet of the Issuer and its Subsidiaries, as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and from the projections from the current fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and certified without qualification as to the scope of the audit, by Ernst & Young L.L.P. or by other independent nationally recognized certified public accountants reasonably satisfactory to the Designated Holder; (ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries, copies of the unaudited consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow for such fiscal quarter and the portion of such Persons' fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the comparisons to the projections for such period, and the all in reasonable detail and prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial position of the Issuer and their Subsidiaries on the date thereof (subject to year-end adjustments); (iii) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Issuer and its Subsidiaries, unaudited monthly consolidated financial statements of the Issuer and its Subsidiaries for such month and the portion of such Person's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year and the projections for such period, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Issuer that the information contained in such financial statements fairly presents the financial condition of the Issuer and its Subsidiaries on the date thereof (subject to year-end adjustments); (iv) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Issuer and its Subsidiaries sales and Consolidated EBITDA statements on an individual Store-by-Store basis for each Store operated by the Issuer or any of its Subsidiaries, such statements to be in a form satisfactory to the Designated Holder; (v) promptly after the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Issuer or any of its Subsidiaries; (vi) within 45 days after the beginning of each fiscal year of the Issuer and from time to time upon request of the Designated Holder (but not more frequently than annually), projections and a budget of the Issuer and its Subsidiaries updating those projections and budget delivered to such Holder and referred to in Section 4.04(c) of the Subordinated Loan Agreement or, if applicable, updating any later such projections and budget delivered in response to a request pursuant to this Section 16(a)(vi); (vii) all information sent to directors of the Issuer or any of its Subsidiaries in their capacities as such regarding the opening of new Stores; (viii) all notices or other information sent to any of the Senior Lenders in its capacity as such; and (ix) from time to time such other financial data and information (including accountants' management letters) as such Holder may reasonably request. (b) Until the earlier of (i) the occurrence of the IPO or (ii) Holder shall hold Warrants or Warrant Shares representing less than 30% of the Warrants and/or Warrant Shares issued hereunder, the Issuer shall provide Holder with written notice of each meeting of the Board of Directors of the Issuer and of each of its Subsidiaries concurrently with notice to each of the Directors and permit one representative designated by the Holder and Blackstone Holdings to attend (without the authority to vote), such meeting, and shall pay the reasonable out-of-pocket costs and expenses of such representative in connection therewith; provided that such representative shall not be permitted to attend the portion of any such meeting, if any, during which there shall exist a conflict of interest arising out of Holder's ownership of Loans and other Obligations pursuant to the Subordinated Loan Agreement. (c) During the period Holder owns Warrants and/or Warrant Shares representing at least 30% of the Warrants issued hereunder, Holder shall have the right to consult with and advise the management of the Issuer with respect to any matters affecting the Issuer. (d) The Issuer shall not amend its Restated Certificate of Incorporation, By-laws or the terms of its capital stock, or enter into any new agreement, in any way that affects the economic terms of the Series A Preferred Stock or the Series B Preferred Stock in any way adverse to the holders of the Warrants (including amending any such terms to increase the liquidation preference, dividend rate or redemption price with respect thereto) without the consent of the Required Holders. (e) The Issuer will not, and will not permit any Subsidiary to, engage in any transaction with any Affiliate (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such Affiliate or, to the knowledge of the Issuer or any of its Subsidiaries, any corporation, partnership, trust or other entity in which any such Affiliate has a substantial interest or is an officer, director, trustee or partner, on terms less favorable to the Issuer or its Subsidiaries than would have been obtainable on an arm's-length basis in the ordinary course of business, provided that[^] that the foregoing restriction shall not apply to (i) management fees and expenses payable to BRS, any BRS Affiliate, Xxxxxx Xxxx or any Xxxxxx Xxxx Affiliate in an aggregate amount not to exceed one percent (1%) of Consolidated EBITDA (calculated without including any Synergistic Add Backs) in any fiscal year and (ii) Investments permitted by Section 7.03(k) of the Subordinated Loan Agreement.