Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares: (i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report; (ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter; (iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year; (iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii); (v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a); (vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries; (vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person; (viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and (ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 6 contracts
Sources: Warrant (Brooke Corp), Warrant Agreement (Brooke Corp), Warrant Agreement (Brooke Corp)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(ia) As soon as practicable available, and in any event within thirty (30) 45 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the first three fiscal quarters of each fiscal year, the Company for such month shall prepare and the year-to-date period, and furnish to each 5% Member an unaudited consolidated balance sheet of the Company and its Subsidiaries as of at the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals fiscal quarter and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) related unaudited consolidated statements of income, retained earnings income and cash flows of the Company for such fiscal quarter and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterfiscal quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) setting forth in comparative form, form the corresponding figures for the actual results for the corresponding periods in of the immediately preceding Fiscal Year previous fiscal year for the unaudited consolidated balance sheet and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited unaudited consolidated statements of income, retained earnings income and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its Subsidiaries, all prepared in accordance with GAAP. The financial statements delivered pursuant to this Section 12.01(a) shall be accompanied by a statement of members’ capital.
(b) As soon as available, and in any event within 120 days after the end of each fiscal year, the Company shall prepare and furnish to the Members an audited consolidated balance sheet of the Company and its Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable fiscal year and in any event before November 30 the related audited consolidated statements of each income and cash flows for such fiscal year, a Budget and Projections for each month of the next succeeding fiscal year (including prepared in accordance with GAAP. The financial statements delivered pursuant to this Section 12.01(b) shall be accompanied by a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);members’ capital.
(vc) If the The Company shall otherwise prepare or have available financial statements and other information for provide to each 5% Member (i) the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When availableannual operating plan, (Aii) all significant reports or written communications submitted the Annual Operating and Capital Budget and (iii) subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to the Company or any of its Subsidiaries by its accountants third parties that may be in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company Company’s or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From Subsidiaries’ possession from time to time, and except for any information that is subject to attorney-client privilege or other privilege from disclosure (provided, that to the extent possible, the parties shall cooperate in good faith to permit disclosure of such additional information in a manner that preserves such privilege), any board packages or other information provided to any Director, in each case, promptly upon such information being made available. In addition, the Company shall provide to each 5% Member, upon such Member’s request, such financial information regarding the business, properties, Company and its Subsidiaries as is reasonably requested for (A) such Member to comply with any obligations under applicable Laws or (B) any other reasonable business purpose.
(d) To the extent the financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be and other information required to deliver information and notices under be delivered to any Member pursuant to this Section 10(a) if 12.01 is contained in a document or report Echo files with the Warrant Holder (SEC via the SEC’s ▇▇▇▇▇ system, such financial and other information shall be deemed to be delivered to the Members for purposes of this Section 12.01 at the time such document or Initial Holder) report is receiving so filed with the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementSEC.
Appears in 5 contracts
Sources: Limited Liability Company Agreement (PF2 SpinCo, Inc.), Limited Liability Company Agreement (Change Healthcare Inc.), Limited Liability Company Agreement (Change Healthcare Inc.)
Financial and Other Information. The Company will keep, (a) Effective upon and will cause its Subsidiaries to keep, proper books after delivery by the Borrower of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:Initial Financial Statements,
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company Borrower and its Consolidated Subsidiaries as of the February 26, 2000 and each following fiscal year end of such month, prepared in accordance with GAAP (except for normal adjustments the Borrower and accruals its Consolidated Subsidiaries and the lack related consolidated statements of footnotes income and other presentation items) consistent with past practice, (B) in comparative form, figures cash flows for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year then ended, reported on by Deloitte & Touche (or other independent public accountants of nationally recognized standing) fairly present, in conformity with generally accepted accounting principles, the consolidated financial position of the Borrower and amounts projected its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Reportfiscal year;
(ii) Within forty-five (45) days after the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of such fiscal quarter end and each following fiscal quarter end of each Fiscal Quarter including the Borrower and its Consolidated Subsidiaries (other than the fourth (4thfiscal quarter of any fiscal year) Fiscal Quarter, (A) unaudited and the related consolidated statements of income, retained earnings income and cash flows for the fiscal quarter then ended, set forth in the Borrower's quarterly report on Form 10-Q for the fiscal quarter then ended, a copy of which will be delivered to each of the Company Banks, fairly present, in conformity with generally accepted accounting principles applied on a basis consistent with the Initial Financial Statements, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such quarter and for the period from the beginning of the then current Fiscal Year fiscal period, subject to the normal year-end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;adjustments; and
(iii) Within ninety (90) days after there has been no material adverse change in the end of each Fiscal Yearbusiness, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows or prospects of the Company Borrower and its consolidated Subsidiaries on Consolidated Subsidiaries, considered as a consolidated basiswhole since May 27, as at the end of such Fiscal Year;2000.
(ivb) As soon as practicable Since November 2, 1999, and in any event before November 30 of each year, a Budget and Projections for each month until delivery by the Borrower of the next succeeding fiscal year (including a statement Initial Financial Statements, there has been no material adverse effect on the revenues, store operations, inventory, accounts receivable, business or prospects of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company Borrower and its Subsidiaries on considered as a consolidated basiswhole, or shall provide their Governing Bodies (as applicable) to the Borrower's knowledge, in any relationship with any financial information not otherwise provided for herein, they shall also furnish vendor or third party insurance payor of the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company Borrower or any of its Subsidiaries by its accountants in connection with each annualConsolidated Subsidiaries, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices considered as a Purchaser under the Note and Warrant Purchase Agreementwhole, other than, in each case, as publicly disclosed before April 10, 2000.
Appears in 4 contracts
Sources: Exchange Debt Facility (Rite Aid Corp), Senior Credit Agreement (Rite Aid Corp), RCF Facility Agreement (Rite Aid Corp)
Financial and Other Information. The Company will keepBlockbuster (and Viacom with respect to clause (xii) below) agrees that, for so long as Viacom is required to consolidate Blockbuster's results of operations and will cause its Subsidiaries to keep, proper books of record and account financial position (determined in accordance with GAAP generally accepted accounting principles consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:applied):
(i) Blockbuster shall, and shall cause each of its Subsidiaries to, maintain a system of internal accounting controls in accordance with generally accepted accounting principles and SEC and tax related requirements that will provide reasonable assurance that Blockbuster's and such Subsidiaries' books, records and accounts fairly reflect all transactions and dispositions of assets.
(ii) Blockbuster shall, and shall cause each of its Subsidiaries to, maintain a fiscal year which commences and ends on the same dates as does Viacom's fiscal year of each calendar year.
(iii) As soon as practicable practicable, and in any event within thirty ten Business Days after the end of each month in each fiscal year of Blockbuster, Blockbuster shall deliver to Viacom (30a) a monthly consolidated income statement and related schedules for Blockbuster and its Subsidiaries and (b) a year-to-date consolidated income statement and related schedules for Blockbuster and its Subsidiaries. As soon as practicable, and in any event within 20 Business Days (x) after the end of each of the first three quarters in each fiscal year of Blockbuster, and (y) after the end of each such fiscal year, Blockbuster shall deliver to Viacom a consolidated balance sheet and related schedules and statement of cash flows and related schedules for Blockbuster and its Subsidiaries for such fiscal quarter or year end, as the case may be.
(iv) As soon as practicable, and in any event within 35 days after the end of each monthof the first three quarters in each fiscal year of Blockbuster and no later than ten days before Blockbuster intends to file its Quarterly Financial Statements (as defined below) with the SEC, including the month Blockbuster shall deliver to Viacom drafts of March, June, September and December (A) unaudited the consolidated financial statements of income, retained earnings Blockbuster and cash flows of the Company its Subsidiaries (and notes thereto) for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterquarter, setting forth in each case in comparative form for each such fiscal quarter of Blockbuster the consolidated figures (and unaudited consolidated balance sheets notes thereto) for the corresponding quarter and periods of the Company as of the end of such Fiscal Quarter, previous fiscal year and all of which statements and balance sheets shall be in reasonable detail, detail and prepared in accordance with GAAP (except for normal adjustments and accruals and the lack Article 10 of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the CompanyRegulation S-X, and (B) in comparative form, figures for the actual a discussion and analysis by management of Blockbuster's and its Subsidiaries' financial condition and results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected of operations for such periods pursuant to Section 10(a)(iv)fiscal period, together with a written report (or such SEC Report which shall contain the same information) providing explanations including, without limitation, an explanation of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Yearadverse change, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (BItem 303(b) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared Regulation S-K. The information set forth in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, subsections (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations above is herein referred to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.the
Appears in 3 contracts
Sources: Initial Public Offering and Split Off Agreement (Blockbuster Inc), Initial Public Offering and Split Off Agreement (Blockbuster Inc), Initial Public Offering and Split Off Agreement (Blockbuster Inc)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-five concurrently with delivery of financial statements under clauses (45a) days after and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the end chief financial officer of each Fiscal Quarter including the fourth Borrower Agent;
(4thd) Fiscal Quarterconcurrently with delivery of financial statements under clause (a) above, (A) unaudited consolidated statements copies of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Borrowers by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiie) Within ninety (90) not later than 30 days after prior to the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Borrowers’ consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month;
(f) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(g) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(h) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(i) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Borrower’s or Subsidiary’s financial condition or business; and
(j) as soon as available, and in any event within 120 days after the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to Agent. Documents required to deliver information be delivered pursuant to Sections 10.1.2(a) or (b) shall be deemed to have been delivered on the date on which Borrower Agent provides Agent and notices under this Section 10(aeach Lender with notice that such documents are posted on Clearwater’s behalf with the Securities Exchange Commission so long as: (i) if the Warrant Holder Borrower Agent provides Agent and each Lender with a link to such documents; and (or Initial Holderii) is receiving the same information such documents are easily accessible and notices as printable and in a Purchaser under the Note and Warrant Purchase Agreementformat acceptable to Agent.
Appears in 3 contracts
Sources: Loan and Security Agreement (Clearwater Paper Corp), Loan and Security Agreement (Clearwater Paper Corp), Loan and Security Agreement (Potlatch Forest Products CORP)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished furnish to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable available, and in any event within thirty (30) 90 days after the end close of each monthFiscal Year, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthFiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year of Parent and its Subsidiaries, which consolidated statements shall be prepared in accordance with GAAP GAAP, audited and certified (except for normal adjustments and accruals and the lack of footnotes and other presentation without qualification as to scope, “going concern” or similar items) consistent with past practiceby a firm of independent certified public accountants of recognized standing selected by Borrower Representative and acceptable to Required Lenders, (B) and shall set forth in comparative form, form corresponding figures for the actual results for preceding Fiscal Year and other information filed with the corresponding month Securities and year-to-date periods in Exchange Commission, and the immediately preceding fiscal year consolidating balance sheets as of the end of such Fiscal Year and amounts projected related statements of income for such month pursuant to Section 10(a)(iv)Fiscal Year of Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and (iii) a copy of the monthly Credit Review Alert ReportForeign Subsidiaries;
(iib) Within forty-five as soon as available, (45i) and in any event within 45 days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, following: (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterQuarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, all of which statements for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and (B) consolidating balance sheets as of the end of such Fiscal Quarter and the related statements of income for such portion of the Fiscal Year then elapsed for Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and Foreign Subsidiaries (provided, that for the purposes of this clause (B) only, in the case of each Fiscal Quarter that corresponds with the end of a Fiscal Year, such delivery shall be made within 90 days after the end of such Fiscal Quarter), (ii) and in reasonable detailany event within 30 days after the end of each Fiscal Month, unaudited consolidated balance sheets as of the end of such Fiscal Month and a related consolidated profit and loss statement and cash flow statement (which cash flow statement need not be prepared in accordance with GAAP but instead may be prepared in a manner substantially similar to the cash flow statement presented to the Collateral Agent with respect to the Fiscal Month ending on July 30, 2011) for such Fiscal Month and for the portion of the Fiscal Year then elapsed, for Parent and its Subsidiaries (except excluding discontinued operations), setting forth in comparative form corresponding figures for the preceding Fiscal Year and (iii) and in any event within 45 days after the end of each Fiscal Quarter (but within 90 days after the last Fiscal Quarter in a Fiscal Year) a report setting forth a copy of Parent’s Management Discussion and Analysis for such Fiscal Quarter, and, in each case of clauses (i), (ii) and (iii), certified by either the Chief Financial Officer, Vice President, Finance or Controller of the Borrower Representative as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter or Fiscal Month, as applicable, and period, subject to normal year end adjustments and accruals the absence of footnotes;
(c) concurrently with delivery of financial statements under clauses (a) and the lack (b)(i) above, or more frequently if requested by Collateral Agent while a Default or Event of footnotes and other presentation items) consistent with past practiceDefault exists, and certified as accurate a Compliance Certificate executed by the Chief Financial Officer Officer, Vice President, Finance or Controller of the CompanyBorrower Representative;
(d) to the extent available and upon Lenders’ request, copies of all management letters and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant other material reports submitted to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances Borrowers by their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiie) Within ninety (90) not later than 30 days after the end of each Fiscal Year, (A) audited projections of Borrowers’ consolidated statements balance sheets, results of income, retained earnings operations and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures flow for the period covered by the preceding annual audit and as of the end of the preceding next Fiscal Year, all of quarter by quarter, in form and substance reasonably satisfactory to the Collateral Agent, which statements and balance sheets projections shall be prepared on a reasonable basis and in reasonable detail good faith, and satisfactory in scope to the Warrant Holders and prepared based on assumptions believed by the Company Borrowers to be reasonable at the time made based on the circumstances known at such time; it being recognized by the Lenders that any projections as to future events are not to be viewed as facts and audited that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material;
(f) promptly after the sending or filing thereof, copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; provided, that each statement or report required to be delivered pursuant to this clause (f) shall be deemed to have been delivered on the date on which the Borrower Representative posts such document on the Borrower Representative’s website on the Internet at the website address ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & .▇▇▇▇▇▇▇▇, CPAs.▇▇▇, or another respected firm of independent certified public accountants selected when such document is posted on the Securities and Exchange Commission’s website at ▇▇▇.▇▇▇.▇▇▇ (the “SEC Website”) or on an Internet website established by the Company and reasonably satisfactory to Lenders with Intralinks, Inc. or other similarly available electronic media (each of the Warrant Holdersforegoing an “Informational Website”); provided, whose opinion further, that (i) the Borrower Representative shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as deliver paper copies of all other reports submitted by such documents to any Lender that requests the Company’s accountants; and Borrower Representative to deliver such paper copies (without impairment of the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations effectiveness of any material variances from the previous Fiscal Year and any material variances document previously delivered in connection with the Projections covering the previous Fiscal Year, electronic media form) until a request to cease delivering paper copies is given by such Lender and (Dii) the certification each Lender shall be notified by electronic mail of the Chief Financial Officer applicable Informational Website and of the Company posting of each such document; it being understood and agreed that all such Financial Statements present fairly in accordance with GAAP (x) Agent shall have no obligation to request the financial position, results of operations and statements of cash flows delivery or to maintain copies of the Company and its consolidated Subsidiaries on a consolidated basisdocuments referred to above in this clause (f), as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 shall have no responsibility to monitor compliance by the Borrower Representative with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of each year, a Budget such documents; and Projections (y) Borrowers shall be responsible for each month (other than with respect to the SEC Website) and shall incur all risks associated with (including with respect to the SEC Website) the security and confidentiality of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) Informational Websites and Section 10(a)(ii)its information posted thereon;
(vg) If concurrently with delivery thereof to the Company shall otherwise prepare or have available financial statements Revolving Credit Agent (but only to the extent not duplicative of items required hereunder), delivery of the notices, certificates, reports and other information for the Company required by Sections 8.1, 8.2, and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type 8.3 of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventRevolver Agreement; and
(ixh) From such other reports and information (financial or otherwise) as any Lender may reasonably request from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company time in connection with any Collateral or any of its subsidiaries as the Warrant Holder (Obligor’s financial condition or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementbusiness.
Appears in 3 contracts
Sources: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in a manner to allow financial statements to be prepared in accordance with GAAP consistently applied throughout the periods covered in which full GAAP; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within one hundred twenty (120) days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Intermediate Holdco and its Subsidiaries, which consolidated statements shall be audited and certified (without qualification) by ▇▇▇▇ ▇▇▇▇▇, LLC or any firm of independent certified public accountants of recognized standing selected by Intermediate Holdco and reasonably acceptable to Agent (it being agreed that for the Fiscal Year ending July 31, 2017, only the post-acquisition period will be required to be audited), and shall set forth, beginning with the Fiscal Year ending July 31, 2018 in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within thirty (30) days after the end of each monthmonth (other than the end of a Fiscal Quarter), including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Intermediate Holdco and its Subsidiaries, setting forth in comparative form, beginning with the Fiscal Year ending July 31, 2017, corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (Bnoting any purchase accounting adjustments) in comparative formorder to present financial performance and measure financial covenants at normalized levels, figures for and fairly presenting in all material respects the actual financial position and results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected of operations for such month pursuant and period, subject to Section 10(a)(iv), normal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within as soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals Quarter and the lack related statements of footnotes income and other presentation items) consistent with past practice, cash flow for such Fiscal Quarter and certified as accurate by for the Chief Financial Officer portion of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year then elapsed, on a consolidated basis for Intermediate Holdco and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such yearits Subsidiaries, setting forth in each case, in comparative form, corresponding figures for the period covered preceding Fiscal Year and certified by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP (and generally accepted auditing standards, (Bnoting any purchase accounting adjustments) such accountants’ comment letter on the Company’s internal in order to present financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; performance and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yearmeasure financial covenants at normalized levels, and (D) the certification of the Chief Financial Officer of the Company that fairly presenting in all such Financial Statements present fairly in accordance with GAAP material respects the financial position, position and results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of for such Fiscal YearQuarter and period, subject to normal year-end adjustments and the absence of footnotes;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 3 contracts
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.), First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.), First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Financial and Other Information. The Company will keepProvide Mezzanine Lender, and will cause Guarantor to provide to Mezzanine Lender, at its Subsidiaries to keepaddress set forth in Section 11.11, proper books the following financial statements and information during the term of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLoan:
(ia) As soon as practicable and in any event within thirty Within one hundred twenty (30120) days after the end of each monthfiscal year of the Guarantor, including the month of March, June, September and December (A) unaudited consolidated audited financial statements of income, retained earnings and cash flows the operations of the Company for such month and the year-to-date periodGuarantor, Capital Senior Properties, and an unaudited Borrower prepared on a consolidated basis and in accordance with GAAP by a nationally recognized accounting firm or independent certified public accounting firm acceptable to the Mezzanine Lender, which statements shall include a balance sheet and a statement of income and expenses for the Company year then ended. In lieu thereof, Guarantor may submit to Mezzanine Lender, upon its filing thereof, a copy of its Form 10-K as of filed with the United States Securities and Exchange Commission.
(b) [Intentionally Deleted]
(c) Within one hundred twenty (120) days after the end of such montheach fiscal year of Triad II Limited Partnership, audited financial statements of the operations of Triad II Limited Partnership, prepared in accordance with GAAP (except for normal adjustments by a regionally recognized accounting firm or independent certified public accounting firm acceptable to Mezzanine Lender, which acceptance shall not be unreasonably withheld, and accruals which statements shall include a balance sheet and the lack a statement of footnotes income and other presentation items) consistent with past practice, (B) in comparative form, figures expenses for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;then ended.
(iid) [Intentionally Deleted]
(e) [Intentionally Deleted]
(f) Within forty-five (45) days after the end of each Fiscal Quarter including fiscal quarter (except the fourth (4thlast fiscal quarter) Fiscal Quarterof the Borrower, (A) unaudited consolidated interim financial statements of income, retained earnings and cash flows the operations of the Company for such quarter Borrower, certified as true and for the period from the beginning correct in all material respects by a financial officer of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detailBorrower, prepared in accordance with GAAP (except for normal adjustments GAAP, which statements shall include a balance sheet and accruals statement of income and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures expenses for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;quarter then ended.
(iiig) Within ninety forty-five (9045) days after the end of each Fiscal Yearfiscal quarter (except the last fiscal quarter) of Guarantor, (A) audited consolidated unaudited interim financial statements of incomethe operations of Guarantor, retained earnings certified as true and cash flows correct in all material respects by a financial officer of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be Guarantor prepared in accordance with GAAP and generally accepted auditing standardsGAAP, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which statements shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year balance sheet and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) income and expenses for the Companyquarter then ended. In lieu of its obligations hereunder, in Guarantor may submit to Mezzanine Lender a copy of its Form 10-Q as filed by Guarantor with the same format as the financial statements provided pursuant to Section 10(a)(i) United States Securities and Section 10(a)(ii);Exchange Commission.
(vh) [Intentionally Deleted]
(i) [Intentionally Deleted]
(j) If requested by Mezzanine Lender, within thirty (30) days after the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basisfiling deadline, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to may be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From extended from time to time, such additional information regarding copies of all federal, state and local tax returns of Borrower (which may be consolidated into those returns of Guarantor) and Guarantor, together with all supporting documentation and required schedules.
(k) [Intentionally Deleted]
(l) [Intentionally Deleted]
(m) Within forty-five (45) days after the businessend of each fiscal quarter of Triad II Limited Partnership, properties, unaudited interim financial position, results of operations, or prospects statements of the Company operations of Triad II Limited Partnership and of the operations of any assets owned by Triad II Limited Partnership, certified as true and correct in all material respects by an officer of the general partner of Triad II Limited Partnership, prepared in accordance with GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended.
(n) Within forty-five (45) days after the end of each fiscal quarter of Capital Senior Properties, internally prepared interim financial statements of operations of Capital Senior Properties, certified as true and correct in all material respects by a financial officer of Capital Senior Properties, prepared in accordance with GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended. The Mezzanine Lender further reserves the right to require such other financial information of Borrower, Guarantor, Triad II Limited Partnership and/or Capital Senior Properties, at such other times (including monthly or any of more frequently) as it shall deem necessary, in its subsidiaries commercially reasonable discretion. All financial statements must be in such form and detail as the Warrant Holder (or Initial Holder) may Mezzanine Lender shall from time to time request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement, in its commercially reasonable discretion.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Capital Senior Living Corp), Mezzanine Loan Agreement (Capital Senior Living Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty (30) 120 days after the end of each month, including the month of March, June, September 2013 Fiscal Year and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) within 90 days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal QuarterYear thereafter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Company and its Subsidiaries, which consolidated statements shall be audited and certified (without any “going concern” or like qualification or exception or any qualification or exception as to scope of which statements audit) by a firm of independent certified public accountants of recognized standing selected by Company and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 60 days after the end of the first Fiscal Quarter of the 2014 Fiscal Year, and thereafter within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, unaudited balance sheets shall be as of the end of such month and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Company and its Subsidiaries, setting forth in reasonable detail, comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and accruals the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month (but within 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the lack related statements of footnotes income and other presentation items) consistent with past practice, cash flow for such month and certified as accurate by for the Chief Financial Officer portion of the CompanyFiscal Year then elapsed, on consolidated and (B) consolidating bases for Company and its Subsidiaries, setting forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such periods pursuant month and period, subject to Section 10(a)(ivnormal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), together (b) and (c) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Borrower Agent;
(e) concurrently with a written report delivery of financial statements under clause (or such SEC Report which shall contain the same informationa) providing explanations above, copies of any all management letters and other material variances and any material variances reports submitted to Borrowers by their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiif) Within ninety (90) not later than 30 days after prior to the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Company’s consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month and for the next three Fiscal Years, year by year;
(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(h) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(j) such other reports and information (financial or otherwise) as the Warrant Holder (Agent may reasonably request from time to time in connection with any Collateral or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (any Borrower’s, Subsidiary’s or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementother Obligor’s financial condition or business.
Appears in 2 contracts
Sources: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries Deliver to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable and in any event within thirty (30) available but no later than 50 days after the end of each monthof its first three fiscal quarters in each fiscal year, including the month of March, June, September and December (A) unaudited consolidated and consolidating balance sheet of Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related unaudited statements of incomeoperations, retained earnings stockholders equity and cash flows of the Company Borrower and its Subsidiaries for such month fiscal quarter and the year-to-date period, and an unaudited consolidated balance sheet that portion of the Company as of fiscal year through the end of such monthquarter, and setting forth in each case in comparative form the figures from the budget for such fiscal year most recently furnished to Lender pursuant to Section 6.02 and the actual figures for the corresponding date or period in the previous year. Such financial statements shall be prepared in accordance with GAAP (except for normal adjustments Generally Accepted Accounting Principles, shall be complete and accruals correct, shall fairly present the financial condition and results of operations of Borrower and its Subsidiaries at the lack of footnotes dates and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv)presented, and (iii) shall be so certified by a copy Responsible Officer of the monthly Credit Review Alert Report;Borrower; and
(iib) Within forty-five (45) as soon as available but no later than 95 days after the end of each Fiscal Quarter including of its fiscal years, a complete copy of an audit report of Borrower and its Subsidiaries which shall include at least the fourth (4th) Fiscal Quarterconsolidated and consolidating balance sheet of Borrower and its Subsidiaries as of the close of such year, (A) unaudited consolidated and the related statements of incomeoperations, retained earnings stockholders equity and cash flows of the Company for such quarter and for the period from year then ended, setting forth in each case in comparative form the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company figures as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated previous year. Such financial statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP Generally Accepted Accounting Principles, shall fairly present the financial position and generally accepted auditing standardsresults of operations of Borrower and its Subsidiaries at the dates and for the periods presented, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which and shall be issued as well as copies certified by KPMG Peat Marwick, or other independent public accounting firm of all other reports submitted recognized national standing selected by the Company’s accountants; Borrower and the Company agrees that they satisfactory to Lender. Such certificate shall request not be qualified or limited because of restricted or limited examination by such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations accountant of any material variances from the previous Fiscal Year and portion of Borrower's records or otherwise or contain any material variances in connection exceptions with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the respect to possible errors generated by financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementreporting.
Appears in 2 contracts
Sources: Credit Agreement (Liberty Livewire Corp), Credit Agreement (Liberty Media Corp /De/)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty (30) 120 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal QuarterYear, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Parent and Subsidiaries, which consolidated statements and balance sheets shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Parent and acceptable to Agent in its reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practicediscretion, and certified as accurate by the Chief Financial Officer of the Company, and (B) shall set forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant other information acceptable to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal QuarterAgent;
(iiib) Within ninety (90) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month of a fiscal quarter and 60 days after the last month in a Fiscal Year), (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated unaudited balance sheets of the Company as of the end of such yearmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Parent and Subsidiaries, setting forth in each case, in comparative form, form corresponding figures for the period covered preceding Fiscal Year and certified by the preceding annual audit chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year end adjustments and the absence of footnotes;
(c) a Compliance Certificate executed by the chief financial officer of Borrower Agent which certifies compliance with Section 10.3 and provides a reasonably detailed calculation of the Fixed Charge Coverage Ratio delivered (i)(A)concurrently with delivery of financial statements under clause (a) above and (B) in each case when such month is the last month of a Fiscal Quarter, concurrently with the delivery of financial statements under clause (b) above, in each case of clauses (A) and (B), whether or not a Fixed Charge Trigger Period then exists, (ii) on the first day of any Fixed Charge Trigger Period (certifying compliance as of the last day of the Measurement Period most recently ended prior to the start of such Fixed Charge Trigger Period and for which the Financial Statements and Compliance Certificate required by Section 10.1.2(b) and (c) shall have been delivered (or were required to have been delivered) to Agent) and as of the end last day of such Measurement Period thereafter ending (with delivery of the preceding financial statements required under clause (b) above for such Measurement Period, but in any case within 45 days of such last day) during any Fixed Charge Trigger Period and (iii) as requested by Agent while a Default or Event of Default exists;
(d) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Credit Parties by their accountants in connection with such financial statements;
(e) not later than 45 days after the beginning of each Fiscal Year, projections of Parent’s consolidated balance sheets, results of operations, cash flow and Availability for such Fiscal Year, quarter by quarter and for the next three Fiscal Years, year by year;
(f) at Agent’s request, a trade payables aging, all in form satisfactory to Agent;
(g) promptly after the sending or filing thereof, copies of which any proxy statements, financial statements or reports that Parent has made generally available to its shareholders; copies of any regular, periodic and balance sheets special reports or registration statements or prospectuses that Parent files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by Parent or any Credit Party to the public concerning material changes to or developments in the business of the Parent or any other Credit Party;
(h) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(i) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Credit Party’s financial condition or business. Documents required to be delivered pursuant to Section 10.1.2(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be in reasonable detail and satisfactory in scope deemed to have been delivered on the Warrant Holders and prepared by date (i) on which the Company and audited by Borrower Agent posts such documents, or provides a link thereto on the Borrower Agent’s website on the Internet at ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & .▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Borrower Agent’s behalf at ▇▇▇.▇▇▇.▇▇▇ or otherwise on an Internet or intranet website, CPAsif any, in each case to which each Lender and the Agent have access (whether a commercial, third-party website or another respected firm of independent certified public accountants selected whether sponsored by the Company Agent); provided that, the Borrower Agent shall notify the Agent and reasonably satisfactory each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Warrant Holders, whose opinion Agent by electronic mail electronic versions of such documents. The Agent shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on have no obligation to request the Company’s internal financial delivery or accounting systems or controls which shall be issued as well as to maintain copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter documents referred to be prepared in connection with each auditabove, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of shall have no responsibility to monitor compliance by the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) Credit Parties with any financial information not otherwise provided such request for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses theretodelivery, and (B) unless disclosed in SEC Reports, acquisition analyses each Lender shall be solely responsible for material acquisitions, presentations requesting delivery to lenders, financial institutions it or potential investors, consultants’ reports relating to the Company and/or maintaining its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementdocuments.
Appears in 2 contracts
Sources: Loan and Security Agreement (Lawton Surgery Investment Company, LLC), Loan and Security Agreement (NPMC Holdings, LLC)
Financial and Other Information. The Company covenants that it ------------------------------- will keepdeliver to each Holder (as defined in Section 12 hereof) by first-class mail, and will cause its Subsidiaries postage prepaid, addressed to keep, proper the address of such Holder as shown on the books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesCompany:
(i) As as soon as practicable and in any event within thirty (30) 20 days after the end of each monthcalendar month in each fiscal year, including the month of March, June, September and December (A) unaudited consolidated and consolidating statements of income, retained earnings stockholders' equity and cash flows of the Company and its Subsidiaries (as defined in the Note Agreement) for such calendar month and for the year-to-date periodperiod from the beginning of the current fiscal year to the end of such calendar month, and an unaudited a consolidated balance sheet of the Company and its Subsidiaries as of at the end of such calendar month, prepared all in accordance with GAAP (except for normal adjustments reasonable detail and accruals and satisfactory in form to the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert ReportHolders;
(ii) Within forty-five (45) as soon as practicable and in any event within 45 days after the end of each Fiscal Quarter including fiscal quarter (other than the fourth (4thfiscal quarter) Fiscal Quarterin each fiscal year, (A) unaudited consolidated and consolidating statements of income, retained earnings stockholders' equity and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterfiscal quarter, and unaudited a consolidated balance sheets sheet of the Company and its Subsidiaries as of at the end of such Fiscal Quarterfiscal quarter, all of which statements and balance sheets shall be setting forth in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) each case in comparative form, form figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year fiscal year, all in reasonable detail and amounts projected for satisfactory in form to the Holders and certified by an authorized financial officer of the Company, provided, however, that delivery within such periods pursuant to Section 10(a)(iv), together with a written report (or time period of the Company's Quarterly Report on Form 10-Q containing such SEC Report which shall contain the same information) providing explanations of any material variances financial statements and any material variances financial information prepared in connection compliance with the Projections covering such Fiscal Quarterrequirements therefor and filed with the Securities and Exchange Commission shall be deemed to satisfy the requirement of this clause (ii) as to delivery of consolidated financial statements;
(iii) Within ninety (90) as soon as practicable and in any event within 90 days after the end of each Fiscal Yearfiscal year, (A) audited consolidated and consolidating statements of income, retained earnings income and cash flows and a consolidated and consolidating statement of stockholders' equity of the Company and its Subsidiaries for such year, and a consolidated balance sheets sheet of the Company and its Subsidiaries as of at the end of such year, setting forth in each case, case in comparative form, form corresponding consolidated figures for the period covered by from the preceding annual audit and as of the end of the preceding Fiscal Yearaudit, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope form to the Warrant Holders and prepared and, as to consolidated statements, reported on by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants of recognized national standing selected by the Company and or other independent public accountants reasonably satisfactory acceptable to the Warrant Holders whose report shall be without limitation as to the scope of the audit and satisfactory in substance to the Holders, whose opinion and as to consolidating statements certified by an authorized financial officer of the Company; provided, however, that delivery within such time period of the Company's Annual Report on Form 10-K containing such financial statements and financial information prepared in compliance with the requirements therefor and filed with the Securities and Exchange Commission shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, deemed to satisfy the requirements of this clause (Biii) such accountants’ comment letter on the Company’s internal as to delivery of consolidated financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Yearstatements;
(iv) As soon promptly upon transmission thereof, copies of all such financial statements, proxy statements, notices and reports as practicable it shall send to its public stockholders and in copies of all registration statements (without exhibits) and all reports (including reports on Form 8-K) which it files with the Securities and Exchange Commission (or any event before November 30 of each year, a Budget and Projections for each month governmental body or agency succeeding to the functions of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) Securities and Section 10(a)(iiExchange Commission);
(v) If the Company shall otherwise prepare or have available financial statements promptly upon receipt thereof, a copy of each management letter and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same report submitted to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions management or board of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to directors of the Company or any of its Subsidiaries Subsidiary by its independent accountants in connection with each any annual, interim or special audit or review of any type made by them of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to books of the Company and/or its Subsidiariesor any Subsidiary;
(vi) promptly after the preparation thereof, school-by-school information with the content and in the form prepared by management for internal review and use (which information can be in the form contained in the Private Placement Memorandum (as defined in the Note Agreement)), provided that the Company need not provide the information under this clause (vi) more frequently than once each fiscal quarter;
(vii) Promptlypromptly after the Company's receipt thereof, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to notice from the Company United States Department of Education or any of its Subsidiaries pursuant to the terms of other Federal, state or in connection withlocal governmental body, any Purchaser Document agency or any Subsidiary articles, operating agreement or bylaws, or department alleging non-compliance by the Company or any of its Subsidiaries to with any such Person;material statute, law decree, court or administrative order or regulation, including maximum cohort default rates, the "85/15 RULE", denial of a requested change of control in connection with acquisition of schools or threatened loss of school accreditation; and
(viii) Promptly, upon obtaining knowledge promptly after the Company or any Subsidiary becomes aware thereof, but in no event less than 5 Business Days prior to notice of the occurrence of any Put Event; and
(ix) From time other event which is material to timethe Company or any of its Subsidiaries, including the initiation of any material disputes, administrative proceeding, investigation or litigation or any material developments in any such additional information regarding disputes or litigation, conditions that could result in a material adverse change in the business, propertiescondition (financial or otherwise), financial position, results of operations, operations or prospects of the Company or any of its subsidiaries as Subsidiaries, and generally accepted accounting principles or Company accounting practices (which notice shall describe such event and the Warrant Holder (effect, if any, of such event or Initial Holder) may request; provided that change on the Company shall not be required to deliver information and notices under Company's results of operations, financial condition or compliance with this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementAgreement in reasonable detail).
Appears in 2 contracts
Sources: Warrant Agreement (Corinthian Colleges Inc), Warrant Agreement (Corinthian Colleges Inc)
Financial and Other Information. The Company will keepagrees to furnish to TMI Sub, MSV Investors and will cause Motient Sub, for so long as such Stockholder is required to account for its Subsidiaries to keep, proper books investment in the Company on a consolidated basis or under the equity method of record and account accounting (determined in accordance with GAAP generally accepted accounting principles in the United States (“GAAP”) consistently applied throughout applied), the periods covered in which full following financial statements and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesother information:
(i) As as soon as practicable available, and in any event within thirty (30no later than 10 days prior to each date which is the earliest date on which a Stockholder is required to file a Quarterly Report on Form 10-Q under Section 13(a) days after or 15(d) of the end Exchange Act for each of the first, second and third quarterly accounting periods in each monthfiscal year of the Company, including copies of the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated consolidating balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practicequarterly accounting period, and certified as accurate by the Chief Financial Officer of the Company, related consolidated and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated consolidating statements of income, income and retained earnings and cash flows for such accounting period and for the portion of the Company fiscal year then ended, all in reasonable detail and stating in comparative form the unaudited consolidated and consolidating figures as of the end of and for such the corresponding date and period in the previous fiscal year, all certified by the Company’s chief financial officer as complete and correct and as presenting fairly the information contained therein in accordance with GAAP, subject to (x) recurring non-material changes resulting from year-end audit adjustments and (y) absence of the notes required by GAAP; and
(ii) as soon as available and in any event no later than 15 days prior to each date which is the earliest date on which a Stockholder is required to file an Annual Report on Form 10-K under Section 13(a) or 15(d) of the Exchange Act for the each fiscal year of the Company, copies of the audited consolidated and consolidating balance sheets of the Company as of the end of such fiscal year, setting forth and of the related audited consolidated and consolidating statements of income and retained earnings and cash flows for such fiscal year, all in each case, reasonable detail and stating in comparative form, corresponding form the respective consolidated and consolidating figures for the period covered by the preceding annual audit and as of the end of and for the preceding Fiscal Yearprevious fiscal year, all complete and correct and as presenting fairly the information contained therein in accordance with GAAP, and, in the case of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared such audited consolidated statements, accompanied by the Company and audited by a report thereon of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, LLP or another respected a nationally recognized firm of independent certified public accountants selected by the Company and reasonably satisfactory to (the Warrant Holders, whose opinion shall be unqualified and shall be prepared “Accountants”) following an examination by the Accountants in connection with such consolidated financial statements in accordance with GAAP and generally accepted auditing standards.
(b) In addition, (B) such accountants’ comment letter on in the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and event that the Company agrees that they becomes a “significant subsidiary” (as defined in Section 1-02(w) of Regulation S-X under the Exchange Act and applied in Section 3-09 of such Regulation S-X) of a Stockholder, the Company shall request cooperate fully with such a comment letter Stockholder by providing such assistance as is required for the Stockholder to be prepared prepare its Quarterly Reports on Form 10-Q in connection accordance with each auditthe requirements of the Exchange Act, (C) a written report (which may include a SEC Report that contains and all of the same information) providing explanations of any material variances from rules and regulations promulgated thereunder, including, without limitation, by arranging for the previous Fiscal Year and any material variances Accountants to prepare quarterly reports in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly Company’s quarterly financial statements referred to in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;Section 7(a)(i).
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(vc) If the Company shall otherwise prepare indicates at the time it provides any financial or have available financial statements and other information for the Company and its Subsidiaries on to a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished Stockholder pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted 7 that such information is material non-public information relating to the Company it or any of its Subsidiaries Affiliates (“Non-Public Information”), such Stockholder agrees not to disclose or reveal any Non-Public Information to any other Person until such time as the Non-Public Information is disclosed in a press release or a filing with the Securities and Exchange Commission, unless such Stockholder is required by its accountants applicable law to disclose such Non-Public Information. In the event that such Stockholder is requested pursuant to, or required by, applicable law to disclose or reveal any Non-Public Information, such Stockholder agrees that, prior to disclosing such information, it will provide the Company with notice of such request or requirement in order to enable the Company to seek an appropriate protective order or other remedy, or to consult with such Stockholder with respect to steps that may be taken to resist or narrow the scope of such request or legal process. Such Stockholder acknowledges that it is aware that the United States securities laws prohibit any person possessing Non-Public Information from purchasing or selling any securities on the basis of the Non-Public Information. Consequently, such Stockholder agrees not to effect any trades in securities on the basis of the Non-Public Information. Further, such Stockholder agrees that while it is in possession of the Non-Public Information, it will refrain from making recommendations about buying, selling or exercising or redeeming securities. To the extent that the Stockholder is a public company (or an Affiliate of a public company), the Company and such Stockholder shall coordinate their efforts with respect to planning for the public disclosure of the Non-Public Information in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser Stockholder’s obligations under the Note and Warrant Purchase Agreementfederal securities laws.
Appears in 2 contracts
Sources: Stockholders’ Agreement (Skyterra Communications Inc), Stockholders’ Agreement (Motient Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Parent and its Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Parent and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(ivnormal year end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (b), and (iiic) above, or more frequently if requested by Agent while a copy Default or Event of Default exists, a Compliance Certificate executed by the monthly Credit Review Alert Reportchief financial officer of Parent;
(iie) Within forty-five concurrently with delivery of financial statements under clause (45a) days after the end above, copies of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Parent by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiif) Within ninety (90) not later than 30 days after prior to the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Parent’s consolidated balance sheets sheets, results of the Company as of the end of such yearoperations, setting forth in each casecash flow, in comparative form, corresponding figures Colonial Availability and ACM-TCM Availability for the period covered by the preceding annual audit and as of the end of the preceding next Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared month by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Yearmonth;
(ivg) As soon as practicable and in any event before November 30 at Agent’s request, a listing of each yearBorrower’s trade payables, specifying the trade creditor and balance due, and a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Companydetailed trade payable aging, all in the same format as the financial statements provided pursuant form satisfactory to Section 10(a)(i) and Section 10(a)(ii)Agent;
(vh) If promptly after the Company shall otherwise prepare sending or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basisfiling thereof, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review copies of any type of the proxy statements, financial statements or related internal control systemsreports that Parent has made generally available to its shareholders; copies of any regular, including periodic and special reports or registration statements or prospectuses that Parent files with the Securities and Exchange Commission or any comment letters (other Governmental Authority, or drafts thereof) delivered to management any securities exchange; and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions copies of any press releases or potential investors, consultants’ reports relating other statements made available by Parent to the Company and/or public concerning material changes to or developments in the business of Parent and its Subsidiaries;
(viii) Promptlypromptly after the sending or filing thereof, with copies of all amendmentsany annual report to be filed in connection with each Plan;
(j) such other reports and information (financial or otherwise) as Agent or Collateral Agent may request from time to time in connection with any Collateral or Parent’s, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of Subsidiaries’ or in connection with, any Purchaser Document other Obligor’s financial condition or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Eventbusiness; and
(ixk) From on each anniversary date hereof or on such other date as reasonably required by Collateral Agent, from time to time, such additional information regarding a written certification to Collateral Agent and the business, properties, financial position, results of operations, or prospects Lenders that the form of the Company or any of its subsidiaries as Vehicle Contracts comply with the Warrant Holder (or Initial Holder) may request; provided that the Company Vehicle Contract Compliance Requirements, which certification shall not be required in form and content satisfactory to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementCollateral Agent.
Appears in 2 contracts
Sources: Loan and Security Agreement (Americas Carmart Inc), Loan and Security Agreement (Americas Carmart Inc)
Financial and Other Information. The Company will keep, Provide Lender the following financial statements and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesinformation on a continuing basis:
(ia) As soon as practicable and in any event within thirty Within one hundred twenty (30120) days after the end of each monthfiscal year of Borrower, including the month of March, June, September Guarantor and December Manager:
(Ai) unaudited consolidated Audited financial statements of income, retained earnings and cash flows of Guarantor prepared by a nationally recognized accounting firm or an independent certified public accounting firm acceptable to the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such monthLender, prepared in accordance with GAAP (except for normal adjustments GAAP, including a balance sheet, a statement of income and accruals expenses, a statement of changes in financial position, cash flow and the lack a breakdown or source and application of footnotes and other presentation items) consistent with past practiceall funds, (B) in comparative form, figures for the actual results year then ended; (ii) unaudited financial statements of the Borrower and Manager prepared by a nationally recognized accounting firm or an independent certified public accounting firm acceptable to the Lender, prepared in accordance with GAAP, including a balance sheet, a statement of income and expenses, a statement of changes in financial position, cash flow and a breakdown of source and application of all funds, for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and then ended; (iii) a copy separate financial statements on the operations of the monthly Credit Review Alert Report;Facility certified by Borrower or Manager, as the case may be, to be true and correct, and prepared from the books and records of Borrower or Manager, as the case may be, in accordance with sound accounting principles applied on a consistent basis from year to year, in form and detail satisfactory to Lender, including a balance sheet and income statement; (iv) separate financial statements of any lessee of the Facility.
(iib) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarterfiscal quarter, (A) unaudited consolidated financial statements of incomethe Borrower, retained earnings Manager and cash flows of the Company for such quarter and Guarantor for the period from the beginning of the quarter then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detailended, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practiceGAAP, and certified as accurate by the Chief Financial Officer of the CompanyBorrower, Manager, and (B) in comparative formGuarantor, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year respectively, to be true and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;correct.
(iiic) Within ninety forty-five (9045) days after the end of each Fiscal Yearfiscal quarter, (A) audited consolidated statements of income, retained earnings and cash flows of a current year-to-date operating statement for the Company for such year, and consolidated balance sheets of the Company Facility as of the end of such year, setting quarter and the quarterly financial statement and census status for the Facility in the form and detail set forth in Exhibit G hereto, properly completed and certified by the Borrower to be true and correct.
(d) Upon fifteen (15) days of the Lender's written request, an aged accounts receivable report of the Facility in sufficient detail to show amounts due from each caseclass of patient by the account age classifications of 30 days, in comparative 60 days, 90 days, 120 days, and over 120 days, and
(e) Upon five (5) days of the receipt by the Borrower or Facility, any and all notices (regardless of form) from any licensing and/or certifying agency.
(f) Within ten (10) business days of the actual filing of cost reports of the Facility with the Medicaid agency, corresponding figures if applicable, furnish to Lender a complete and accurate copy of the annual Medicaid cost report for the period covered by the preceding annual audit facility, and promptly furnish Lender any amendments filed with respect to such reports and all responses or inquiries with respect to such reports.
(g) Such financial statements of Guarantor and other Persons as and when required in any of the end Loan Documents.
(h) Upon Lender's request, evidence of payment by Borrower of any applicable provider bed taxes or similar taxes, which Borrower agrees to pay. The Lender reserves the preceding Fiscal Yearright to require such other financial information (including tax returns, detailed cash flow information and contingent liability information) of Borrower and Guarantor, all of which at such time as Lender shall deem necessary, and Borrower agrees promptly to provide such information to Lender. All financial statements and balance sheets shall must be in reasonable the form and detail as the Lender shall from time to time request. Lender may sell participation interests in the Loan, may sell or transfer the Loan, or place the Loan in a pooling of Loans for syndication and satisfactory in scope sale of interests therein to investors. In such event Borrower consents to the Warrant Holders Lender's disclosure and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm distribution of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise of Borrower that has been provided for herein, they shall also furnish the same by Borrower to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished Lender pursuant to the foregoing provisions of this Section 10(a);
(vi) When availableAgreement to prospective participation, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annualpurchasers, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptlyrating agencies and others involved in any participation , with copies of all amendmentssale, consent letters, waivers pooling or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementsyndication.
Appears in 2 contracts
Sources: Loan Agreement (Balanced Care Corp), Loan Agreement (Balanced Care Corp)
Financial and Other Information. The Company will keep, and will Customer shall cause its Subsidiaries the following information to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating available to their business and affairs, and IBM Credit within the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesfollowing time periods:
(iA) As as soon as practicable available and in any event within thirty ninety-one (3091) days after the end of each month, including the month fiscal year of March, June, September and December Customer (Ai) unaudited consolidated statements of income, retained earnings and cash flows audited Financial Statements as of the Company close of the fiscal year and for the fiscal year, together with a comparison to the Financial Statements for the prior year, in each case accompanied by (a) either an opinion of the Auditors without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit or, if so qualified, an opinion which shall be in scope and substance reasonably satisfactory to IBM Credit, (b) such month and the year-to-date periodAuditors' "Management Letter" to Customer, if any, and an unaudited consolidated balance sheet (ii) a Compliance Certificate along with a schedule, in substantially the form of Attachment C hereto, of the Company calculations used in determining, as of the end of such monthfiscal year, prepared whether Customer is in accordance compliance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, financial covenants set forth in Attachment A;
(B) as soon as available and in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within any event within forty-five six (4546) days after the end of each Fiscal Quarter including the fourth fiscal quarter of Customer (4thi) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company Financial Statements as of the end of such Fiscal Quarterperiod and for the fiscal year to date, together with a comparison to the Financial Statements for the same periods in the prior year, all of which statements and balance sheets shall be in reasonable detaildetail and duly certified (subject to normal year-end audit adjustments and except for the absence of footnotes) by the chief executive officer, chief financial officer, Treasurer or Controller of Customer as having been prepared in accordance with GAAP GAAP; and (except for normal adjustments and accruals and ii) a Compliance Certificate along with a schedule, in substantially the lack form of footnotes and other presentation items) consistent with past practiceAttachment C hereto, and certified as accurate by the Chief Financial Officer of the Companycalculations used in determining, and (B) as of the end of such fiscal quarter, whether Customer is in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection compliance with the Projections covering such Fiscal Quarterfinancial covenants set forth in Attachment A;
(iiiC) Within ninety as soon as available and in any event within sixty (9060) days after the end of each Fiscal Yearfiscal year of Customer (i) projected Financial Statements, broken down by quarter, for the current and following fiscal year; and (Aii) audited consolidated statements if composed, a narrative discussion relating to such projected Financial Statements;
(D) promptly after Customer obtains knowledge of income(i) the occurrence of a Default or Event of Default, retained earnings and cash flows or (ii) the existence of any condition or event which would result in the Customer's failure to satisfy the conditions precedent to Advances set forth in Section 5, a certificate of the Company for chief executive officer, chief financial officer, Treasurer or Controller of Customer specifying the nature thereof and the Customer's proposed response thereto, each in reasonable detail;
(E) promptly after Customer obtains knowledge of (i) any proceeding(s) being instituted or threatened to be instituted by or against Customer in any federal, state, local or foreign court or before any commission or other regulatory body (federal, state, local or foreign), or (ii) any actual or prospective change, development or event which, in any such yearcase, has had or could reasonably be expected to have a Material Adverse Effect, a certificate of the chief executive officer, chief financial officer, Treasurer or Controller of Customer specifying the nature thereof and the Customer's proposed response thereto, each in reasonable detail;
(F) promptly after Customer obtains knowledge that (i) any order, judgment or decree in excess of $3,000,000 shall have been entered against Customer or any of its properties or assets, or (ii) it has received any notification of a material violation of any Requirement of Law from any Governmental Authority, a certificate of the chief executive officer, chief financial officer, Treasurer or Controller of Customer specifying the nature thereof and the Customer's proposed response thereto, each in reasonable detail;
(G) promptly after Customer learns of any material labor dispute to which Customer may become a party, any strikes or walkouts relating to any of its plants or other facilities, and consolidated balance sheets the expiration of any labor contract to which Customer is a party or by which it is bound, a certificate of the Company chief executive officer, chief financial officer, Treasurer or Controller of Customer specifying the nature thereof and the Customer's proposed response thereto, each in reasonable detail;
(H) within five (5) Business Days after request by IBM Credit, any written certificates, schedules and reports together with all supporting documents as IBM Credit may reasonably request relating to the Collateral or the Customer's or any guarantor's business affairs and financial condition;
(I) by the fifth (5th) day of each month, or as otherwise agreed in writing, a Collateral Management Report as of a date no earlier than the end last day of the immediately preceding month;
(J) within five (5) days after the same are sent, copies of all Financial Statements and reports which Customer sends to its stockholders, and within five (5) days after the same are filed, copies of all Financial Statements and reports which Customer may make to, or file with, the Securities and Exchange Commission or any successor or analogous governmental authority; and
(K) immediately upon issuance or receipt, as the case may be, copies of all notices, reports, certificates or schedules issued or received by Customer or CSI Funding, Inc. in accordance with the Transaction Documents. Each certificate, schedule and report provided by Customer to IBM Credit shall be signed by an authorized officer of Customer, and which signature shall be deemed a representation and warranty that the information contained in such yearcertificate, setting forth schedule or report is true and accurate in each case, in comparative form, corresponding figures for all material respects on the period covered by the preceding annual audit and date as of which such certificate, schedule or report is made and does not omit to state a material fact necessary in order to make the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope contained therein not misleading at such time. Each Financial Statement delivered pursuant to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and this Section 7.1 shall be prepared in accordance with GAAP applied consistently throughout the periods reflected therein and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementperiods.
Appears in 2 contracts
Sources: Inventory and Working Capital Financing Agreement (Compucom Systems Inc), Inventory and Working Capital Financing Agreement (Safeguard Scientifics Inc Et Al)
Financial and Other Information. The Company will keepBorrower covenants and agrees with each Lender that, until the Maturity Date and will cause its Subsidiaries to keep, proper books thereafter for as long as any portion of record the Loan shall remain outstanding and account in accordance with GAAP consistently applied throughout until the periods covered in which full and true entries will be made final payment of all dealings or transactions relating to their business and affairsthe Loan, and the Company Borrower shall cause to be furnished furnish to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable available and in any event within thirty (30) 60 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet first three quarters of each fiscal year of the Company Borrower, unaudited balance sheets of the Borrower and its Subsidiaries as of the end of such month, prepared in accordance with GAAP (except for normal adjustments quarter and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings operations and cash flows of the Company for such quarter and for the period from commencing at the beginning end of the then current Fiscal Year to previous fiscal year and ending with the end of such Fiscal Quarterquarter (all in reasonable detail and with all notes and supporting schedules), certified by the chief financial officer of the Borrower as presenting fairly the financial condition of the Borrower and unaudited the Subsidiaries as of the dates and for the periods indicated and as having been prepared in accordance with Generally Accepted Accounting Principles consistently applied, except as may be otherwise disclosed in such financial statements or the notes thereto; provided that the delivery within the time periods specified above of the Borrower's Quarterly Report on either Form 10-QSB or 10-Q prepared in compliance with the requirements therefor and filed with the Commission shall be deemed to satisfy the requirements of this Section 6.2(a);
(b) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, audited consolidated balance sheets of the Company Borrower and its Subsidiaries as of the end of such Fiscal Quarteryear and audited consolidated statements of operations, cash flows and changes in stockholders' equity for such year (all of which statements and balance sheets shall be in reasonable detaildetail and with all notes and supporting schedules), certified without qualification by KPMG Peat Marwick LLP or such other independent public accountants satisfactory to the Required Lenders, as presenting fairly the financial condition of the Borrower and the Subsidiaries as of the dates and for the periods indicated and as having been prepared in accordance with GAAP Generally Accepted Accounting Principles consistently applied, except as may be otherwise disclosed in such financial statements or the notes thereto; provided that the delivery within the time period specified above of the Borrower's Annual Report on either Form 10-KSB or 10-K prepared in compliance with the requests therefor and filed with the Commission shall be deemed to satisfy the requirements of this Section 6.2(b);
(except for normal adjustments c) concurrently with the financial statements furnished pursuant to clauses (a) and accruals (b) of this Section 6.2, a certificate of the chief executive officer or the chief financial officer of the Borrower stating that no Event of Default hereunder and no event or act which, with the giving of notice or the passage or lapse of time, or both, would constitute such an Event of Default or other event shall exist, specifying all such events, and the lack circumstances thereof, and the steps if any being taken to remedy the same;
(d) promptly upon their becoming available, copies of footnotes all financial statements, reports, notices, proxy statements and other presentation items) consistent with past practicecommunications sent by the Borrower to stockholders or to creditors generally, and certified as accurate copies of each regular or periodic report and any registration statements, prospectuses or written communication (other than transmittal letters) filed by the Chief Financial Officer Borrower with the Commission or any successor agency; and with such other information relevant to the financial condition, properties and operations of the CompanyBorrower or any of the Subsidiaries as any Lenders may from time to time reasonably request; and
(e) prompt written notice after any officer of the Borrower knows or has reason to know that: (i) a default or an Event of Default hereunder, or any condition, event or act which with the giving of notice or the passage or lapse of time, or both, would constitute such an Event of Default, has occurred and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)is continuing, together with a written report (or such SEC Report which shall contain specification of the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such steps if any being taken to remedy the same; or (ii) any other circumstances or event has or is reasonably likely to have a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementMaterial Adverse Effect.
Appears in 2 contracts
Sources: Loan Agreement (Systemone Technologies Inc), Loan Agreement (Hanseatic Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished furnish to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable available, and in any event within thirty (30) 90 days after the end close of each month, including the month of March, June, September and December Fiscal Year (provided that (A) unaudited consolidated with respect to the financial statements of income, retained earnings and cash flows in respect of the Company ▇▇▇▇▇ business referred to in clause (ii) below, for the Fiscal Year ending January 31, 2012, such month and financial statements shall be furnished within 180 days of the year-to-date periodclose of such Fiscal Year, and an unaudited (B) with respect to all other financial statements for the Fiscal Year ending January 31, 2012, such financial statements shall be furnished within 97 days after the close of such Fiscal Year), (i) consolidated balance sheet of the Company sheets as of the end of such monthFiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year of Parent and its Subsidiaries, which consolidated statements shall be prepared in accordance with GAAP GAAP, and (except for normal adjustments and accruals ii) balance sheets as of the end of such Fiscal Year and the lack related statements of footnotes income, cash flow and other presentation shareholders’ equity for such Fiscal Year of the ▇▇▇▇▇ business on a standalone basis, which financial statements shall be prepared in accordance with GAAP, in each case, audited and certified (without qualification as to scope, “going concern” or similar items) consistent with past practiceby a firm of independent certified public accountants of recognized standing selected by Borrower Representative and acceptable to Required Lenders, (B) and shall set forth in comparative form, form corresponding figures for the actual results for preceding Fiscal Year and other information filed with the corresponding month Securities and year-to-date periods in Exchange Commission, and the immediately preceding fiscal year consolidating balance sheets as of the end of such Fiscal Year and amounts projected related statements of income for such month pursuant to Section 10(a)(iv)Fiscal Year of Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and (iii) a copy of the monthly Credit Review Alert ReportForeign Subsidiaries;
(iib) Within forty-five as soon as available, (45i) and in any event within 45 days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, following: (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and (x) unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year, and (y) commencing with the Fiscal Quarter ending April 30, 2012, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, for the ▇▇▇▇▇ business on a standalone basis, setting forth in comparative form corresponding figures for the preceding Fiscal Year, and (B) consolidating balance sheets as of the end of such Fiscal Quarter and the related statements of income for such portion of the Fiscal Year then elapsed for Parent and its Subsidiaries, separately presenting Obligors, Immaterial Subsidiaries and Foreign Subsidiaries (provided, that for the purposes of this clause (B) only, in the case of each Fiscal Quarter that corresponds with the end of a Fiscal Year, such delivery shall be made within 90 days after the end of such Fiscal Quarter), (ii) and in any event within 30 days after the end of each Fiscal Month (A) unaudited consolidated balance sheets as of the end of such Fiscal Month and a related consolidated profit and loss statement and cash flow statement for such Fiscal Month and for the portion of the Fiscal Year then elapsed, for Parent and its Subsidiaries (excluding discontinued operations), setting forth in comparative form corresponding figures for the preceding Fiscal Year, and (B) commencing with the Fiscal Month ending May 31, 2012, unaudited balance sheets as of the end of such Fiscal Month and a related profit and loss statement and cash flow statement for such Fiscal Month and for the portion of the Fiscal Year then elapsed, for the ▇▇▇▇▇ business on a standalone basis (excluding discontinued operations), setting forth in comparative form corresponding figures for the preceding Fiscal Year (it being understood that with respect to clauses (i)(A)(y) above and this clause (ii)(B), delivery of the profit and loss statement and statements of working capital, accounts payable and accounts receivable for the ▇▇▇▇▇ business on a standalone basis shall satisfy the requirements set forth in such clauses (i)(A)(y) and (ii)(B) for the Fiscal Months and Fiscal Quarters ending prior to July 31, 2012) and (iii) and in any event within 45 days after the end of each Fiscal Quarter (but within 90 days after the last Fiscal Quarter in a Fiscal Year) a report setting forth a copy of Parent’s Management Discussion and Analysis for such Fiscal Quarter, all and, in each case of which statements clauses (i), (ii) and balance sheets shall be in reasonable detail(iii), certified by either the Chief Financial Officer, Vice President, Finance or Controller of the Borrower Representative as prepared in accordance with GAAP (except and fairly presenting the financial position and results of operations for such Fiscal Quarter or Fiscal Month, as applicable, and period, subject to normal year end adjustments and accruals the absence of footnotes;
(c) concurrently with delivery of financial statements under clauses (a) and the lack (b) above, or more frequently if requested by Collateral Agent while a Default or Event of footnotes and other presentation items) consistent with past practiceDefault exists, and certified as accurate a Compliance Certificate executed by the Chief Financial Officer Officer, Vice President, Finance or Controller of the CompanyBorrower Representative;
(d) to the extent available and upon Lenders’ request, copies of all management letters and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant other material reports submitted to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances Borrowers by their accountants in connection with such financial statements, including any such management letters and material reports with respect to the Projections covering such Fiscal Quarter▇▇▇▇▇ business on a standalone basis;
(iiie) Within ninety (90) not later than 30 days after the end of each Fiscal Year, projections of (Ai) audited Borrowers’ consolidated statements balance sheets, results of income, retained earnings operations and cash flows of flow, (ii) the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & business’ balance sheets, results of operations and cash flow on a standalone basis, in each case, for the next Fiscal Year, quarter by quarter, in form and substance reasonably satisfactory to the Collateral Agent, which projections shall be prepared on a reasonable basis and in good faith, and based on assumptions believed by the Borrowers to be reasonable at the time made based on the circumstances known at such time; it being recognized by the Lenders that any projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material;
(f) at Collateral Agent’s request, a listing of each Obligor’s trade payables, specifying the trade creditor and balance due, all in form satisfactory to Collateral Agent;
(g) promptly after the sending or filing thereof, copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; provided, that each statement or report required to be delivered pursuant to this clause (g) shall be deemed to have been delivered on the date on which the Borrower Representative posts such document on the Borrower Representative’s website on the Internet at the website address ▇▇▇.▇▇▇▇▇▇▇▇, CPAs.▇▇▇, or another respected firm of independent certified public accountants selected when such document is posted on the Securities and Exchange Commission’s website at ▇▇▇.▇▇▇.▇▇▇ (the “SEC Website”) or on an Internet website established by the Company and reasonably satisfactory to Lenders with Intralinks, Inc. or other similarly available electronic media (each of the Warrant Holdersforegoing an “Informational Website”); provided, whose opinion further, that (i) the Borrower Representative shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as deliver paper copies of all other reports submitted by such documents to any Lender that requests the Company’s accountants; and Borrower Representative to deliver such paper copies (without impairment of the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations effectiveness of any material variances from the previous Fiscal Year and any material variances document previously delivered in connection with the Projections covering the previous Fiscal Year, electronic media form) until a request to cease delivering paper copies is given by such Lender and (Dii) the certification each Lender shall be notified by electronic mail of the Chief Financial Officer applicable Informational Website and of the Company posting of each such document; it being understood and agreed that all such Financial Statements present fairly in accordance with GAAP (x) Collateral Agent shall have no obligation to request the financial position, results of operations and statements of cash flows delivery or to maintain copies of the Company and its consolidated Subsidiaries on a consolidated basisdocuments referred to above in this clause (e), as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 shall have no responsibility to monitor compliance by the Borrower Representative with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of each year, a Budget such documents and Projections (y) Borrowers shall be responsible for each month (other than with respect to the SEC Website) and shall incur all risks associated with (including with respect to the SEC Website) the security and confidentiality of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) Informational Websites and Section 10(a)(ii)its information posted thereon;
(vh) If not later than 15 days after the Company shall otherwise prepare or have available Collateral Agent’s request, such information regarding actions undertaken and/or completed to ensure that the ▇▇▇▇▇ business is working towards reporting its financial statements and other information for the Company and its Subsidiaries performance on a consolidated standalone basis such that it could be marketed and sold on a standalone basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ixi) From such other reports and information (financial or otherwise) as any Lender may reasonably request from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company time in connection with any Collateral or any of its subsidiaries as the Warrant Holder (Obligor’s financial condition or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementbusiness.
Appears in 2 contracts
Sources: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Financial and Other Information. The Company will keepExcept as otherwise expressly provided for in this Agreement, and will cause its Subsidiaries to keep, Borrower shall keep proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings and transactions of or transactions relating in relation to their the business and affairsaffairs of Borrower, in accordance with generally accepted accounting principles consistently applied, and the Company Borrower shall cause to be furnished to each Warrant Holder for so long U.S. Bank, from time to time and in a form acceptable to U.S. Bank, such Warrant Holder holds any Warrant or Warrant Sharesinformation as U.S. Bank may reasonably request, including without limitation, the following:
(ia) As as soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Yearfiscal year of Borrower, (Ai) audited consolidated statements of income, retained earnings and cash flows flow of the Company Borrower for such each year, and a consolidated balance sheets sheet of the Company as of the end of Borrower for such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Yearfiscal year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders U.S. Bank and prepared certified to Borrower by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of such independent certified public accountants as are selected by the Company Borrower and reasonably satisfactory to the Warrant HoldersU.S. Bank, whose opinion shall be unqualified in scope and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter substance satisfactory to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal YearU.S. Bank, and (Dii) the certification and (ii) a compliance certificate of the Chief Financial Officer chief financial officer of Borrower in substantially the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, form attached as at the end of such Fiscal YearExhibit 7A (“Compliance Certificate”);
(ivb) As as soon as practicable and in any event before November 30 within forty five (45) days after the end of each yearquarterly accounting period in each fiscal year of Borrower: (i) consolidated financial statements in the 10-Q form as presented to the Securities and Exchange Commission, and certified as accurate by the chief financial officer of Borrower, and (ii) a Budget Compliance Certificate, with the fiscal year end Compliance Certificate to be considered “preliminary” and Projections for each month subject to change with the results of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii)end audit;
(vc) If as soon as practicable and in any event within forty five (45) days after the Company shall otherwise prepare or have available financial end of each monthly accounting period in each fiscal year of Borrower: consolidated statements of income and other information retained earnings of Borrower for the Company such monthly period, and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (balance sheet of Borrower as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systemsend of such monthly period, including any comment letters (or drafts thereof) delivered to management all in reasonable detail and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or certified as accurate by the Company or any chief financial officer of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventBorrower; and
(ixd) From time to timeas soon as practicable and in any event not later than thirty (30) days prior the end of each fiscal year, such additional information regarding an annual budget for Borrower for the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementfollowing fiscal year.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Inventure Foods, Inc.)
Financial and Other Information. The Company will keepDeliver to the BANK such information respecting the business, properties, assets, liabilities, condition (financial or otherwise), operations, or prospects of the BORROWER as the BANK may from time to time reasonably request, including:
(a) as soon as available and will cause in any event within 120 days after the end of each fiscal year of the BORROWER, its Subsidiaries consolidated audited annual financial statements, which shall include at least its balance sheet and related statements of operations, stockholders’ equity and cash flow as of the end of and for such year, setting forth in comparative form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing to keepthe effect that such financial statements present fairly in all material respects the financial condition and results of operations of the BORROWER and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) if available, proper books as soon as available and in any event within 90 days after the end of record the first semiannual reporting period of each fiscal year of the BORROWER, its consolidated semiannual financial statements, which shall include at least its balance sheet and account related statements of operations, stockholders’ equity and cash flow as of the end of and for such period setting forth in comparative form the figures for the corresponding period of the previous fiscal year, presenting fairly in all material respects the financial condition and results of operations of the BORROWER and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period as differences from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets GAAP shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless been disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person approved by, the BANK), subject to normal year-end adjustments and the Company or any absence of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Eventfootnotes; and
(ixc) From time to timeconcurrently with any delivery of financial statements under clause (a) above, such additional information regarding the business, properties, a certificate of a responsible financial position, results of operations, or prospects officer of the Company BORROWER, in the form of EXHIBIT B attached hereto, certifying to such officer’s knowledge whether a DEFAULT or EVENT OF DEFAULT has occurred and, if a DEFAULT or EVENT OF DEFAULT has occurred, specifying the details thereof and any of its subsidiaries as the Warrant Holder (action taken or Initial Holder) may request; provided that the Company shall not proposed to be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementtaken with respect thereto.
Appears in 2 contracts
Sources: Uncommitted and Revolving Credit Line Agreement (Thorne Healthtech, Inc.), Uncommitted and Revolving Credit Line Agreement (Thorne Healthtech, Inc.)
Financial and Other Information. The Company will keepExcept as otherwise expressly ------------------------------- provided for in this Agreement, and will cause its Subsidiaries to keep, Borrower shall keep proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings and transactions of or transactions relating in relation to their the business and affairsaffairs of Borrower, in accordance with generally accepted accounting principles consistently applied, and the Company Borrower shall cause to be furnished to each Warrant Holder for so long FBS Ag Credit, from time to time and in a form acceptable to FBS Ag Credit, such Warrant Holder holds any Warrant or Warrant Sharesinformation as FBS Ag Credit may reasonably request, including without limitation, the following:
(ia) As as soon as practicable and in any event within one hundred and twenty (120) days after the end of fiscal year 1997 and within ninety (90) days of each fiscal year of Borrower thereafter, audited statements of income, retained earnings and changes in the financial condition of Borrower for each year, and a balance sheet of Borrower for such year, setting forth in each case, in comparative form, corresponding figures as of the end of the preceding fiscal year together with a copy of the management letter, all in reasonable detail and satisfactory in scope to FBS Ag Credit and certified to Borrower by such independent public accountants as are selected by Borrower and satisfactory to FBS Ag Credit, whose opinion shall be in scope and substance satisfactory to FBS Ag Credit;
(b) as soon as practicable and in any event within thirty (30) days after the end of each month, including the month monthly accounting period in each fiscal year of March, June, September and December Borrower:
(Ai) unaudited consolidated statements of income, income and retained earnings and cash flows of the Company Borrower for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter period and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quartermonthly period, and unaudited consolidated a balance sheets sheet of the Company Borrower as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such yearmonthly period, setting forth in each case, in comparative form, corresponding figures for the period covered by corresponding periods in the preceding annual audit and as of the end of the preceding Fiscal Yearfiscal year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared certified as accurate by the Company and audited by ▇▇▇▇▇▇▇chief financial officer of Borrower, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory subject to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardschanges resulting from normal year end adjustments, (Bii) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all operating statements for such month prepared by Borrower for its internal use, including without limitation, statements of cash flow, purchases and sales of Inventory and other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yeargoods, and (Diii) the certification a compliance certificate of the Chief Financial Officer chief financial officer of Borrower in the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, form attached as at the end of such Fiscal Year;Exhibit 7A; ----------
(ivc) As as soon as practicable and in any event before November 30 within fifteen (15) days after the end of each year, a Budget and Projections monthly accounting period in each fiscal year of Borrower:
(i) Borrowing Base Certificate for each month Borrower computed as of the next succeeding fiscal year last day of such month, signed by the chief financial officer of Borrower; (including a statement ii) an aged trial balance of underlying assumptions) for the Companyall Accounts indicating which Accounts are thirty (30), in the same format as the financial statements provided pursuant to Section 10(a)(isixty (60) and Section 10(a)(ii)ninety (90) days past the original invoice date of the original invoice related thereto and listing the names of all Account Debtors, (iii) a listing of Borrower's accounts payable indicating which accounts payable are more than thirty (30) days past due;
(vd) If the Company shall otherwise prepare or have available financial statements as soon as practicable and other information in any event within ninety (90) days of each fiscal year of Borrower month by month budget for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementthen current fiscal year.
Appears in 1 contract
Sources: Loan and Security Agreement (Horizon Organic Holding Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 120 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and Subsidiaries (provided that the results of the Grace Companies shall not be included in such monthly reporting), setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), nominal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-five (45) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter including quarter, unaudited balance sheets as of the fourth (4th) Fiscal Quarter, (A) unaudited consolidated end of such quarter and the related statements of income, retained earnings income and cash flows of the Company flow for such quarter and for the period from the beginning portion of the then current Fiscal Year to the end of such Fiscal Quarterthen elapsed, on consolidated and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarterconsolidating bases for Borrowers and its Subsidiaries, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) setting forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered certified by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(Bd) such accountants’ comment letter on concurrently with delivery of financial statements under clauses (a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the Company’s internal chief financial or accounting systems or controls which shall be issued as well as officer of Borrower Agent;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared their accountants in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Yearstatements;
(ivf) As soon as practicable and in any event before November 30 by January 31st of each year, a Budget and Projections for each month projections of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a Borrowers’ consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionbalance sheets, results of operations, cash flow and Availability and Excess Availability for that Fiscal Year on a monthly basis and the following Fiscal Year on a quarterly basis;
(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(h) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Obligor files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries as any press releases or other statements made available by an Obligor to the Warrant Holder (public concerning material changes to or Initial Holder) may requestdevelopments in the business of such Obligor; provided that promptly after the Company shall not sending or filing thereof, copies of any annual report to be required to deliver information and notices under this Section 10(a) if the Warrant Holder (filed in connection with each Plan or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.Foreign Plan; and
Appears in 1 contract
Financial and Other Information. The Company will keepProvide Lender, and will cause Guarantor and Manager to provide to Lender, at its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting address set forth in each caseSection 8.7 and at GMAC Commercial Mortgage Corporation, in comparative form2▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year▇▇▇▇▇ ▇▇▇, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ the following financial statements and information on a continuing basis during the tern of the Loan:
(a) Within one hundred twenty (120) days after the end of each fiscal year of Guarantor Capital Senior Living Corporation, CPAs, or another respected firm audited financial statements of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be Capital Senior Living Corporation prepared in accordance with GAAP by a nationally recognized accounting firm or independent certified public accounting firm acceptable to the Lender (Lender hereby pre-approves Ernst & Young), which statements shall include a balance sheet and generally accepted auditing standardsa statement of income and expenses for the year then ended, and upon its filing thereof, a copy of its Form 100K as filed with the United States Securities and Exchange Commission.
(Bb) such accountants’ comment letter on Within ninety (90) days after the Company’s internal end of each fiscal year of each Facility and each Borrower (if different from its Facility), unaudited financial or accounting systems or controls statements of each Borrower and each Facility (if different from its Borrower), internally prepared in accordance with GAAP, which statements shall include a balance sheet and a statement of income and expenses for the year then ended, and shall be issued certified as well true and correct in all material respects by a financial officer of the applicable Borrower.
(c) Within ninety (90) days after the end of each fiscal year of Manager, unaudited financial statements of Manager, internally prepared in accordance with GAAP, which statements shall include a balance sheet and a statement of income and expenses for the year then ended, and shall be certified as true and correct by a financial officer of Manager.
(d) Within ninety (90) days after the end of each fiscal year of Guarantor Capital Senior Living Properties, Inc., unaudited financial statements of Guarantor Capital Senior Living Properties, Inc., internally prepared in accordance with GAAP, which statements shall include a balance sheet and a statement of income and expenses for the year then ended, and shall be certified as true and correct by a financial officer of Guarantor Capital Senior Living Properties, Inc.
(e) Within forty-five (45) days after the end of each fiscal quarter of each Facility, unaudited interim financial statements of the operations of the Facility, certified as true and correct in all material respects by a financial officer of the applicable Borrower, prepared in accordance with GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended.
(f) Within forty-five (45) days after the end of each fiscal quarter of each Borrower (if different from its Facility), unaudited interim financial statements of Borrower, certified as true and correct in all material respects by a financial officer of Borrower, prepared in accordance with GAAP, which statements shall include a balance sheet and statement income and expenses for the quarter then ended.
(g) Within forty-five (45) days after the end of each fiscal quarter of Guarantor Capital Senior Living Properties, Inc., unaudited interim financial statements of Capital Senior Living Properties, Inc., certified as true and correct in all material respects by a financial officer of Capital Senior Living Properties, Inc., prepared in accordance with GAAP, which statements shall include a balance sheet and a statement of income and expenses for the quarter then ended.
(h) Within forty-five (45) days after the end of each fiscal quarter of Manager, unaudited interim financial statements of Manager, certified as true and correct in all material respects by a financial officer of Manager, prepared in accordance with GAAP, which statements shall include a balance sheet and a statement of income and expenses for the quarter then ended.
(i) Upon filing, the quarterly 10-Q of Capital Senior Living Corporation.
(j) Within forty-five (45) days after the end of each month for each of the Facilities owned by Triad Senior Living I, L.P., Triad Senior Living II, L.P., Triad Senior Living N, L.P., and Triad Senior Living V, L.P., unaudited interim financial statements of the operations of such Facilities, including occupancy information, certified as true and correct in all material respects by a financial officer of the Borrower, prepared in accordance with GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended.
(k) If requested by Lender, within forty-five (45) days after the end of each fiscal quarter, a statement of the number of bed or unit days available and the actual patient or resident days incurred for such quarter, together with quarterly census information of each Facility as of the end of such quarter in sufficient detail to show patient or resident -mix (Le., private, Medicare, Medicaid, and V.A.) on a daily average basis for such year through the end of such quarter, certified by the chief financial officer of Borrower or Manager to be true and correct. Such statements of the Facility shall be accompanied by the Summary of Financial Statements and Census Data attached hereto as Exhibit “D”.
(l) If requested by Lender, within thirty (30) days after the filing deadline, as may be extended from time to time, copies of all federal, state and local tax returns of Borrowers, Guarantors and Manager, together with all supporting documentation and required schedules.
(m) At Lender’s request if and to the extent applicable, within twenty (20) days after filing or receipt, all Medicaid cost reports and any amendments thereto filed with respect to the Facility and all responses, audit reports, or other inquiries with respect to such cost reports.
(n) At Lender’s request if and to the extent applicable, within ten (10) days after receipt, copies of all licensure and certification survey reports submitted by and statements of deficiencies (with plans of correction attached thereto).
(o) At Lender’s request, if and to the Companyextent applicable, within ten (10) days after receipt, a copy of the “Medicaid Rate Calculation Worksheet” (or the equivalent thereof) from the applicable agency.
(p) At Lender’s accountants; request, if and to the Company agrees extent applicable, within ten (10) days of receipt, a statement of the number of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, “default rate” shall have the meaning ascribed to it in that they shall request such a comment certain applicable Medicare rate notification letter to be prepared in connection with each auditany review or survey of the Facility.
(q) Within ten (10) days after receipt, any and all material notices (Cregardless of form) from any and all licensing and/or certifying agencies, including but not limited to, that the Facility’s license is being downgraded to a written report substandard category, revoked or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke or suspend the Facility’s license or certification.
(which may include a SEC Report that contains the same informationr) providing explanations If requested by Lender, evidence of payment by Borrower or Manager of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yearapplicable provider bed taxes or similar taxes.
(s) If requested by Lender, and within forty-five (D45) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at days after the end of each December and June, an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of patient or resident-mix, if applicable (i&., private, Medicare, Medicaid and V.A.), by the account age classifications of 30 days, 60 days, 90 days, 120 days, and over 120 days. Lender reserves the right to require that the annual and/or quarterly financial statements of Borrowers, Guarantors and Manager be audited and prepared by a nationally recognized accounting firm or independent certified public accounting firm acceptable to Lender, at their respective sole cost and expense, if (i) an Event of Default exists and is continuing, or (ii) if Lender has reasonable grounds to believe that the unaudited financial statements do not accurately represent the financial condition of Borrowers, Guarantors and Manager, as the case may be. Lender further reserves the right to require such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 other financial information of each yearBorrowers, a Budget and Projections for each month of Guarantors, Manager and/or the next succeeding fiscal year Facilities, at such other times (including a statement of underlying assumptionsmonthly or more frequently) for the Company, as it shall reasonably deem necessary. All financial statements must be in the same format form and detail as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company Lender shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may time reasonably request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account Until the Notes have been paid in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesfull:
(i) As soon as practicable and in any event within thirty (30) Within 90 days after the end of each monthfiscal year (plus any filing extension to which the Company may be entitled based on a timely filing on Form 12b-25), including the month of March, June, September and December (A) unaudited Company shall provide the Lender with audited consolidated financial statements of income, retained earnings and cash flows of the Company for such fiscal year, in each case audited by an accounting firm selected by the Company and reasonably acceptable to the Lender (it being agreed that the firm of Whitley Penn, LLP, or its successor, is reasonably acceptable to the Lender).
(ii) Within 45 days after the end of each of the first three fiscal quarters (plus any filing extension to which the Company may be entitled based on a timely filing on Form 12b-25), the Company shall provide the Lender with unaudited consolidated financial statements of the Company for such fiscal quarter.
(iii) Within 15 days after the end of each calendar month, the Company shall provide the Lender with a report, electronically or in writing, that includes (A) a listing of all of the Ratio Collateral (as defined below) as of the end of such calendar month, (B) the cash flow status of the Ratio Collateral as of the end of such calendar month, (C) internally prepared consolidated financial statements of income, shareholders’ equity and cash flow of the Company for such calendar month and the year-to-date period, and an unaudited consolidated a balance sheet of the Company as of the end of such month, month (each prepared in accordance with GAAP (except for normal adjustments GAAP, consistently applied during the period covered by such statements and accruals and in a form satisfactory to the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(ivLender), and setting forth in each case (iiibeginning in January 2012) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year comparisons to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)fiscal year and, together with a written report (or such SEC Report which shall contain beginning in the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows month of the Company for such yearEffective Date, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope comparisons to the Warrant Holders and budgets prepared by the Company and audited by ▇▇▇▇▇▇▇(D) such other financial or business information as the Lender may reasonably request, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by all in a format that is mutually agreeable to the Company and the Lender. The monthly statements shall be accompanied by (i) a certificate from the Company’s principal financial officer and principal executive officer, in a form reasonably satisfactory acceptable to the Warrant HoldersLender, whose opinion shall be unqualified and shall be prepared certifying that (A) the Company is in accordance compliance with GAAP and generally accepted auditing standardseach covenant set forth in the Transaction Documents that applies to it, (B) no Event of Default has occurred with respect to any of the Notes and (C) no event of default has occurred with respect to any indebtedness in favor of banks, other financial institutions or third party lenders, or if such accountants’ comment letter on is not the case, specifying such non-compliance, Event of Default or other event of default and the steps being taken to remedy same, (ii) management’s discussion and analysis of the Company’s internal financial or accounting systems or controls which shall be issued as well as copies condition and any material changes in its financial condition and/or results of all other reports submitted by operations compared to the prior month and (iii) a description of any pending or, to the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each auditknowledge, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare threatened litigation or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to legal action involving the Company or any of its Subsidiaries subsidiaries.
(iv) Unless otherwise notified by its accountants in connection with the Lender, during each annual, interim or special audit or calendar month the Company shall hold a review of any type of the financial statements or related internal control systems, including any comment letters meeting (or drafts thereofteleconference) delivered to management with the Lender at a mutually agreeable place and all responses thereto, and time.
(Bv) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating At least 30 days prior to the commencement of each fiscal year the Company and/or shall provide the Lender with a comprehensive annual budget, which shall include annual consolidated and consolidating budgets prepared on a monthly basis for the Company for such fiscal year (displaying anticipated statements of income, shareholders’ equity, changes in financial position and balance sheets and containing such internal narrative as is appropriate). In addition, the budget shall include a capital expenditure plan which shall be presented to the Company’s Board of Directors for its Subsidiaries;
(vii) Promptly, with copies approval within 30 days after the commencement of all amendments, consent letters, waivers or modifications toeach fiscal year. Such capital expenditure plan, and any material notices or reports provided by any Person changes thereto, shall be subject to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects approval of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company Lender, which approval shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (unreasonably withheld, conditioned or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementdelayed.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(a) (i) As as soon as practicable available, and in any event within thirty 120 days after the Closing Date,
(30A) an opening balance sheet as of a date not later than July 17, 2015, on a consolidated basis for Holdings, which balance sheet shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and (B) an opening balance sheet as of a date not later than July 17, 2015, unaudited and on a consolidating basis for each of the other Borrowers and Subsidiaries, (ii) as soon as available, and in any event within 120 days after the close of Fiscal Year 2015, (A) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for the period from the Closing Date through the end of such Fiscal Year, on a consolidated basis for Holdings, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information reasonably acceptable to Lender, and (B) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for the period from the Closing Date through the end of such Fiscal Year, unaudited and on a consolidating basis for the other Borrowers and Subsidiaries, and (iii) as soon as available, and in any event within 120 days after the close of each Fiscal Year thereafter, (A) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for such Fiscal Year, on a consolidated basis for Holdings, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information reasonably acceptable to Lender, and (B) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for such Fiscal Year, unaudited and on a consolidating basis for the other Borrowers and Subsidiaries;
(b) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer or Treasurer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting in all material respects the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-five concurrently with delivery of financial statements under clauses (45a) days after and (b) above, or more frequently if requested by Lender while a Default or Event of Default exists, a Compliance Certificate executed by the end chief financial officer or Treasurer of each Fiscal Quarter including the fourth Borrower Agent;
(4thd) Fiscal Quarterconcurrently with delivery of financial statements under clause (a) above, (A) unaudited consolidated statements copies of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Borrowers by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiie) Within ninety (90) no later than 60 days after the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Borrowers' consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month;
(f) at Lender's request, a listing of each Borrower's trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Lender;
(g) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(h) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(i) such other reports and information (financial or otherwise) as Lender may reasonably request from time to time in connection with any Collateral or any Borrower's, Subsidiary's or other Obligor's financial condition or business;
(j) as soon as available, and in any event within 120 days after the Warrant Holder close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to Lender;
(k) upon receipt or Initial Holderdelivery thereof by or to any Obligor or Subsidiary, any notice of "Default" or "Event of Default" (under and as defined in the Mezzanine Debt Documents) may request; provided that the Company shall not be and, without duplication of any report required to deliver information be provided hereunder, each material report required to be provided pursuant to the Mezzanine Loan Agreement and, upon execution thereof, any waiver, amendment or other modification to the Mezzanine Debt Documents;
(l) upon receipt or delivery thereof by or to any Borrower, any notice of "Default" or "Event of Default" (under and notices under this Section 10(aas defined in the Factoring Agreements) if and, without duplication of any report required to be provided hereunder, each material report required to be provided pursuant to the Warrant Holder Factoring Agreements and, upon execution thereof, any waiver, amendment or other modification to the Factoring Agreements; and
(m) at Lender's request at any time after any Borrower files or Initial Holder) is receiving consents to the same information filing of a consolidated income tax return with any Person other than Borrowers and notices as a Purchaser Subsidiaries under the Note limited circumstances set forth in Section 10.2.12, provide Lender with true, correct and Warrant Purchase Agreementcomplete copies of all filed consolidated income tax returns for the Person with which such Borrower files or consents to the filing of such consolidated income tax returns and evidence that such Person has timely and fully paid all Taxes owing to Governmental Authorities under such returns.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record account with respect to its business activities in which proper entries are made reflecting all material financial transactions that are necessary to permit preparation of financial statements in accordance with GAAP; and account cause to be prepared and furnished to Administrative Agent and Lenders the following (all to be prepared in accordance with GAAP consistently applied throughout on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such change is disclosed to Administrative Agent and is consistent with GAAP (provided, that for purposes of determining compliance with the periods covered covenant contained in which full Section 10.3, all accounting terms employed herein shall be interpreted and true entries will all accounting determinations hereunder shall be made of all dealings or transactions relating in accordance with GAAP as in effect on the Post-Confirmation Effective Date and applied on a basis consistent with the application used in the financial statements referred to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:in Section 9.1.9)):
(i) As as soon as practicable available, and in any event within thirty 120 days after the close of each Fiscal Year audited balance sheets of Parent, InSight Health, Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a Consolidated basis, certified without an Impermissible Qualification (30except for a going concern qualification with respect to Borrowers’ 2007 Fiscal Year arising solely because of the Chapter 11 Cases) by a firm of independent certified public accountants of recognized national standing selected by Borrowers but reasonably acceptable to Administrative Agent and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within 30 days after the end of each monthmonth hereafter (but within 60 days after the last month in a Fiscal Year), including the month unaudited balance sheets of MarchParent, JuneInSight Health, September Borrowers and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company their respective Subsidiaries as of the end of such monthmonth and the related unaudited statements of income and cash flow for such month and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrowers as prepared in accordance with GAAP (except and fairly presenting in all material respects the Consolidated financial position and results of operations of Parent, InSight Health, Borrowers and their respective Subsidiaries for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding such month and year-to-date periods in the immediately preceding fiscal year period subject only to changes from audit and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within fortyyear-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for except that such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall statements need not contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarternotes;
(iii) Within ninety (90) days promptly after the end sending or filing thereof, as the case may be, copies of each Fiscal Yearany proxy statements, (A) audited consolidated financial statements or reports which Parent, InSight Health or any Borrower has made generally available to its shareholders; copies of incomeany regular, retained earnings periodic and cash flows special reports or registration statements or prospectuses which Parent, InSight Health or any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and copies of the Company for such yearany press releases or other statements made available by Parent, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope InSight Health or a Borrower to the Warrant Holders and prepared by public concerning material changes to or developments in the Company and audited by ▇▇▇▇▇▇▇business of Parent, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, InSight Health or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal YearBorrower;
(iv) As soon as practicable and promptly after the sending or filing thereof, copies of any annual report to be filed in any event before November 30 of accordance with ERISA in connection with each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);Plan; and
(v) If such other data and information (financial or otherwise) as Administrative Agent, from time to time, may reasonably request, bearing upon or related to the Company shall otherwise prepare Collateral or have available the financial statements condition or results of operations of Parent, InSight Health, Borrowers and other information their respective Subsidiaries. The timely delivery by Borrowers to Administrative Agent of the annual report on form 10-K for the Company Parent and its Consolidated Subsidiaries on a consolidated basisshall satisfy Borrowers’ obligations under Section 10.1.3(i) above, or shall provide their Governing Bodies (as applicable) provided that such form 10-K satisfies all of the requirements of Section 10.1.3(i). Concurrently with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type delivery of the financial statements or related internal control systemsdescribed in clause (i) of this Section 10.1.3, including any comment letters Borrowers shall deliver to Administrative Agent a copy of the accountants’ letter to Borrowers’ management that is prepared in connection with such financial statements. Concurrently with the delivery of the financial statements described in clauses (or drafts thereofi) delivered to management and all responses thereto, and (Bii) unless disclosed in SEC Reportsof this Section 10.1.3, acquisition analyses for material acquisitions, presentations Borrowers shall cause to lenders, financial institutions or potential investors, consultants’ reports relating be prepared and furnished to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or Administrative Agent a Compliance Certificate executed by the Company or any chief financial officer of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementBorrowers.
Appears in 1 contract
Sources: Loan and Security Agreement (Insight Health Services Holdings Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout reflecting all financial transactions; and furnish to Agent and Lenders:
(a) as soon as available, and in any event within 90 days after the periods covered close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Obligors and Subsidiaries, together with all supporting schedules and footnotes, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent (it being hereby acknowledged by Agent that BPM LLP are acceptable to Agent), and shall set forth in which full comparative form corresponding figures for the preceding Fiscal Year and true entries will be made other information acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter (but within 60 days after the last Fiscal Quarter in a Fiscal Year), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Holdings as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Quarter (other than the last Fiscal Quarter of a Fiscal Year) and 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Holdings as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Holdings;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all dealings or transactions relating management letters and other material reports submitted to Obligors by their business and affairsaccountants in connection with such financial statements, and promptly upon receipt thereof, copies of each report to Obligors (or any of them) concerning accounting practices and systems and any final comment letter submitted by such accountants to management in connection with an annual audit;
(f) not later than 30 days after the Company shall cause end of each Fiscal Year, projections of Obligors’ consolidated and consolidating balance sheets, results of operations, cash flow and Availability for the next Fiscal Year on a Fiscal Quarter by Fiscal Quarter basis;
(g) at Agent’s request, a listing of each Obligor’s trade payables, specifying the trade creditor (if applicable) and balance due, and a detailed trade payable aging, all in form satisfactory to be furnished Agent;
(h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Obligor has made generally available to each Warrant Holder for so long its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Obligor files with the Securities and Exchange Commission or any other governmental authority, or any securities exchange; and copies of any press releases or other statements made available by an Obligor to the public concerning material changes to or developments in the business of such Warrant Holder holds any Warrant or Warrant Shares:Obligor;
(i) As promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or any employee benefit plan or similar employee benefit arrangement maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States or is mandated by a government other than the United States for employees of any Obligor or Subsidiary;
(j) as soon as practicable available, and in any event within 30 days after the initial funding of any Borrower Advance (or, in the case of a Borrower Royalty Receivable Advance, the purchase of the related Borrower Royalty Receivable), a copy of Borrowers’ internally prepared written underwriting report with respect to such Borrower Advance along with such related information as Agent may request in its reasonable discretion with respect to the underwriting rationale for such Borrower Advance;
(k) as soon as available, and in any event within thirty (30) days after the end receipt by Borrowers, copies of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company all reports prepared for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) Borrowers by a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent (it being hereby acknowledged by Agent that BPM LLP are acceptable to Agent), evaluating the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies performance of all other reports submitted by Borrower Advances outstanding during the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous prior Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventQuarter; and
(ixl) From such other reports and information (financial or otherwise) as Agent may request from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company time in its reasonable credit judgment in connection with any Collateral or any of its subsidiaries as the Warrant Holder (Borrower’s Subsidiary’s or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (other Obligor’s financial condition or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementbusiness.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesNoteholders:
(ia) As as soon as practicable available, and in any event within thirty (30) 120 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including Year (or, if earlier, on the fourth (4th) Fiscal Quarterdate of any required public filing thereof), (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Obligors and Subsidiaries, which consolidated statements shall be audited and certified (without qualification) by a firm of which statements independent certified public accountants of recognized standing selected by Obligors and acceptable to Required Noteholders, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year. Delivery by Obligors to Noteholders of Obligors’ annual report to the SEC on Form 10-K with respect to any Fiscal Year, or the availability of such report on ▇▇▇▇▇ Online, within the period specified above shall be deemed to be compliance by Obligors with this Section 10.1.2
(a) upon the delivery by Issuer to Noteholders of written notice of the filing thereof;
(b) as soon as available, and in any event within 30 days after the end of each month (but within 60 days after the last month in a Fiscal Year) (or, if earlier, on the date of any required public filing thereof), unaudited balance sheets shall be as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Obligors and Subsidiaries, setting forth in reasonable detail, comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Obligor as prepared in accordance with GAAP (except and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and accruals and the lack absence of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarterfootnotes;
(iiic) Within ninety concurrently with delivery of financial statements under clauses (90a) and (b) above, or more frequently if requested by Required Noteholders while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Issuer;
(d) not later than 45 days after the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Obligors’ consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial positionsheets, results of operations and statements of cash flows of flow for the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such next Fiscal Year, month by month;
(ive) As soon as practicable promptly after the sending or filing thereof, regular, periodic and special reports or registration statements or prospectuses that any Obligor files with the SEC or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by an Obligor to the public concerning material changes to or developments in the business of such Obligor;
(f) promptly after the sending or filing thereof, copies of any annual report required to be filed with any Governmental Authority in connection with each Plan or Foreign Plan;
(g) promptly (and in any event before November 30 of each year, a Budget and Projections for each month of within ten (10) Business Days) after the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare furnishing or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies receipt thereof (as applicable) with ), copies of any financial information not otherwise provided for hereinborrowing base certificates, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished compliance certificates or notices of default or event of default received pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports ABL Loan Documents or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventSecond Lien Loan Documents; and
(ixh) From such other reports and information (financial or otherwise) as Required Noteholders may reasonably request from time to time, such additional information regarding the time in connection with any Obligor’s or Subsidiary’s financial condition or business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Debt Subordination Agreement (Cross Country Healthcare Inc)
Financial and Other Information. The Company will keepKeep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions, and will cause furnish to Agent and Lenders:
(a) within 90 days after the end of each Fiscal Year of Parent Borrower, its Subsidiaries audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte & Touche LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception (except for any such qualification or exception resulting from any current maturity of Loans hereunder) and without any qualification or exception as to keep, proper books the scope of record such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and account results of operations of Parent Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied throughout (it being understood that the periods covered in which full and true entries will be made of all dealings or transactions relating obligation to their business and affairs, furnish the foregoing to Agent and the Company Lenders shall cause be deemed to be furnished satisfied in respect of any Fiscal Year of Parent Borrower by the filing of Parent Borrower’ annual report on Form 10-K for such Fiscal Year with the Commission to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:the extent the foregoing are included therein);
(ib) As within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Parent Borrower, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, 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, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Parent Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (it being understood that the obligation to furnish the foregoing to Agent and the Lenders shall be deemed to be satisfied in respect of any Fiscal Quarter of Parent Borrower by the filing of Parent Borrower’s quarterly report on Form 10-Q for such Fiscal Quarter with the Commission to the extent the foregoing are included therein);
(c) during any Reporting Trigger Period, as soon as practicable available, and in any event within thirty (30) 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Obligors and their Subsidiaries and on a consolidating basis for each Obligor, from the Obligors’ internal operating statements (which are not intended to be prepared in accordance with GAAP (except for normal adjustments GAAP), certified by a Financial Officer of Parent Borrower as fairly presenting the financial position and accruals and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Reportmonth;
(iid) Within forty-five concurrently with delivery of financial statements under clauses (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quartera), (Ab) unaudited consolidated statements and (c) above, or more frequently if requested by Agent while a Default or Event of incomeDefault exists, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate a Compliance Certificate executed by the Chief a Financial Officer of the CompanyParent Borrower which, inter alia shall (i) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) set forth reasonably detailed calculations demonstrating compliance with the financial covenant set forth in Section 10.3 (whether or not a Financial Covenant Trigger Period is in effect), (iii) state whether any change in GAAP or in the application thereof has occurred since the date of Parent Borrower’s audited financial statements referred to in Section 9.1.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (Biv) in comparative formidentify all Subsidiaries existing on the date of such certificate and indicate, figures for each such Subsidiary, whether such Subsidiary is an Obligor and/or a Foreign Subsidiary and/or an Immaterial Subsidiary and whether such Subsidiary was formed or acquired since the actual results for end of the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such previous Fiscal Quarter;
(iiie) Within ninety 7promptly following any request therefor, provide information and documentation reasonably requested by Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, the Beneficial Ownership Regulation, and the AML Legislation;
(90f) days after the end not later than February 15 of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Borrowers’ consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, or prospects cash flow, Total Availability and each component of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.Total Availability for such Fiscal Year, quarter by quarter;
Appears in 1 contract
Sources: Loan Agreement (Horizon Global Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of reflecting all dealings or transactions relating to their business and affairsfinancial transactions, and the Company shall cause furnish to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for such Fiscal Year, on a consolidated basis for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year; provided, that the Borrowers shall also deliver to the Lender, at the time such audited statements are delivered, an internally prepared annual balance sheet and income statement broken down by geographical area and consistent in presentation with prior practices;
(b) as soon as available, and in any event within 45 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date periodfirst three Fiscal Quarters of each Fiscal Year, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthFiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (to the extent provided for in a Form 10-Q) and certified on behalf of the Borrowers by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except and fairly presenting, in all material respects, the financial position and results of operations for such Fiscal Quarter and period, subject to normal year end adjustments and accruals the absence of footnotes; provided, that the Borrowers shall also deliver to the Lender, at the time such quarterly statements are delivered, an internally prepared quarterly balance sheet and income statement broken down by geographical area and consistent in presentation with prior practices;
(c) as soon as available, and in any event within 30 days after the end of each month (but within 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the lack related statements of footnotes income and other presentation items) consistent with past practicecash flow for such month and for the portion of the Fiscal Year then elapsed, (B) on a consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form, form corresponding figures for the actual preceding Fiscal Year and certified on behalf of the Borrowers by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting, in all material respects, the financial position and results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected of operations for such month pursuant and period, subject to Section 10(a)(iv)normal year end adjustments and the absence of footnotes; provided, that the Borrowers shall also deliver to the Lender, at the time such monthly statements are delivered, an internally prepared monthly balance sheet and (iii) a copy of the monthly Credit Review Alert Reportincome statement broken down by geographical area and consistent in presentation with prior practices;
(iid) Within forty-five concurrently with delivery of financial statements under clauses (45a), (b) and (c) above, or more frequently if requested by Lender while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Borrower Agent;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such financial statements, to the extent that the Borrowers’ accountants consent to such delivery (the Borrowers hereby agree to request such consent);
(f) not later than 10 Business Days after delivery of financial statements under clause (a) above (commencing with financial statements for the Fiscal Year ending December 31, 2016), a certificate (which may be included in the applicable Compliance Certificate) setting forth a calculation of Excess Cash Flow for such Fiscal Year;
(g) not later than 60 days after the end of each Fiscal Quarter including Year (commencing with projections for the fourth (4thFiscal Year ending December 31, 2016, to be delivered within 60 days after December 31, 2015) projections of Borrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the then-current Fiscal QuarterYear, (A) unaudited consolidated statements of incomemonth by month, retained earnings and cash flows of the Company for such quarter and for the period next two Fiscal Years, year by year;
(h) [Reserved];
(i) except as otherwise provided in clauses (a) and (b) above, if requested by the Lender, promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower, in each case which shall be deemed received by Lender (for purposes of this clause (h) and, for the avoidance of doubt, not for purposes of clauses (a) and (b) above) when filed with the Securities and Exchange Commission;
(j) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(k) such other reports and information (financial or otherwise) as Lender may reasonably request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business; and
(l) as soon as available (commencing with the beginning of the then current Fiscal Year to ending December 31, 2016), the end of such Fiscal Quarter, and unaudited consolidated audited balance sheets of the Company sheet as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals Year and the lack related statements of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected income for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of incomefor PartyLite Trading, retained earnings and cash flows of the Company for such yearSA, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected a firm of independent certified public accountants of recognized standing selected by the Company Borrowers and reasonably satisfactory acceptable to the Warrant HoldersLender, whose opinion shall be unqualified and shall be prepared set forth in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on comparative form corresponding figures for the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous preceding Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keep(a) CMC Financial Information. CMC agrees that, for so long as Cabot is required to consolidate CMC's results of operations and will cause financial position or to account for its Subsidiaries to keep, proper books investment in CMC under the equity method of record and account accounting (determined in accordance with GAAP generally accepted accounting principles consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:applied):
(i) CMC shall, and shall cause each of its Subsidiaries to, maintain a system of internal accounting controls that will provide reasonable assurance that: (A) CMC's and such Subsidiaries' books, records
(ii) CMC shall, and shall cause each of its Subsidiaries to, maintain a fiscal year which commences on October 1 and ends on September 30 of each calendar year.
(iii) CMC shall deliver to Cabot all schedules consistent with Cabot's corporate closing requirements and in a time consistent with Cabot's corporate closing schedule.
(iv) As soon as practicable practicable, and in any event within thirty (30) 35 days after the end of each monthof the first three fiscal quarters in each fiscal year of CMC and no later than five days before CMC intends to file its Quarterly Financial Statements (as defined below) with the SEC, including the month CMC shall deliver to Cabot drafts of March, June, September and December (A) unaudited the consolidated financial statements of income, retained earnings CMC and cash flows of the Company its Subsidiaries (and notes thereto) for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterquarter, setting forth in each case in comparative form for each such fiscal quarter of CMC the consolidated figures (and unaudited consolidated balance sheets notes thereto) for the corresponding quarter and periods of the Company as of the end of such Fiscal Quarter, previous fiscal year and all of which statements and balance sheets shall be in reasonable detail, detail and prepared in accordance with GAAP (except for normal adjustments and accruals and the lack Article 10 of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the CompanyRegulation S-X, and (B) in comparative form, figures for the actual a discussion and analysis by management of CMC's and its Subsidiaries' financial condition and results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected of operations for such periods pursuant to Section 10(a)(iv)fiscal period, together with a written report (or such SEC Report which shall contain the same information) providing explanations including, without limitation, an explanation of any material variances adverse change, all in reasonable detail and any material variances prepared in connection accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." No later than the earlier of (x) two Business Days prior to the date CMC publicly files the Quarterly Financial Statements with the Projections covering SEC or otherwise makes such Fiscal Quarter;Quarterly Financial Statements publicly available or (y) two Business Days prior to the date on which Cabot has notified CMC that it intends to file its quarterly financial statements with the SEC, CMC shall deliver to Cabot the final form of the Quarterly Financial Statements certified by the chief financial officer of CMC as presenting fairly, in all material respects, the financial condition and results of operations of CMC and its Subsidiaries; provided that CMC may continue to revise such Quarterly Financial Statements prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by CMC to Cabot as soon as practicable, and in any event within eight hours thereafter; and, provided, further, that Cabot and CMC financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which CMC may consider making to its Quarterly Financial Statements and related
(iiiv) Within ninety (90) CMC shall deliver to Cabot as soon as practicable, and in any event within 45 days after the end of each Fiscal Yearfiscal year of CMC and no later than 10 days before CMC intends to file its Annual Financial Statements (as defined below) with the SEC, (A) audited drafts of the consolidated financial statements of income, retained earnings CMC (and cash flows of the Company notes thereto) for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, case in comparative form, corresponding form the consolidated figures (and notes thereto) for the period covered by the preceding annual audit previous fiscal year and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP Regulation S-X and generally accepted auditing standards, (B) a discussion and analysis by management of CMC's and its Subsidiaries' financial condition and results of operations for such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audityear, (C) a written report (which may include a SEC Report that contains the same information) providing explanations including, without limitation, an explanation of any material variances from the previous Fiscal Year adverse change, all in reasonable detail and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly prepared in accordance with GAAP Item 303(a) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Annual Financial Statements." CMC shall deliver to Cabot all revisions to such drafts as soon as any such revisions are prepared or made. No later than the earlier of (1) five Business Days prior to the date CMC publicly files the Annual Financial Statements with the SEC or otherwise makes such Annual Financial Statements publicly available or (2) five Business Days prior to the date on which Cabot has notified CMC that it intends to file its annual financial statements with the SEC, CMC shall deliver to Cabot the final form of the Annual Financial Statements certified by the chief financial officer of CMC as presenting fairly, in all material respects, the financial position, condition and results of operations and statements of cash flows of the Company CMC and its consolidated Subsidiaries on a consolidated basis, Subsidiaries; provided that CMC may continue to revise such Annual Financial Statements prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by CMC to Cabot as at the end of such Fiscal Year;
(iv) As soon as practicable practicable, and in any event before November 30 of within eight hours thereafter; and, provided, further, that Cabot and CMC financial representatives shall actively consult with each yearother regarding any changes (whether or not substantive) which CMC may consider making to its Annual Financial Statements and related disclosures during the three Business Days immediately prior to any anticipated filing with the SEC, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company CMC shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);obtain Cabot's consent prior
(vi) When CMC shall deliver to Cabot all Quarterly and Annual Financial Statements of each Subsidiary of CMC which is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the such financial statements or related internal control systems, including any comment letters (or drafts thereof) to be provided in the same manner and detail and on the same time schedule as those financial statements of CMC required to be delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations Cabot pursuant to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;this Section 4.1.
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports All information provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company CMC or any of its Subsidiaries to any Cabot pursuant to Sections 4.1(a)(iii) through (vii) inclusive shall be consistent in terms of format and detail and otherwise with the procedures in effect on the date hereof with respect to the provision of such Person;financial information by the CMC Business and/or CMC and its Subsidiaries, as applicable, to Cabot (and, where appropriate, as presently presented in financial reports to Cabot's Board of Directors), with such changes therein as may be requested by Cabot from time to time consistent with changes in reporting by sectors and Subsidiaries of Cabot.
(viii) PromptlyCMC and each of its Subsidiaries which files information with the SEC shall deliver to Cabot: (A) as soon as the same are prepared, upon obtaining knowledge thereofsubstantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or made available by CMC or any of its Subsidiaries to their security holders, (y) all regular, periodic and other reports to be filed under Sections 13, 14 and 15 of the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and (z) all registration statements and prospectuses to be filed by CMC or any of its Subsidiaries with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such exchange (collectively, the documents identified in clauses (x), (y) and (z) are referred to herein as "CMC Public Filings"), and (B) as soon as practicable, but in no event less later than 5 five Business Days prior to the occurrence of any Put Event; anddate
(ix) From CMC shall, as promptly as practicable, deliver to Cabot copies of all annual and other budgets and financial projections (consistent in terms of format and detail and otherwise with the procedures in effect on the date hereof) relating to CMC or any of its Subsidiaries and shall provide Cabot an opportunity to meet with management of CMC to discuss such budgets and projections.
(x) With reasonable promptness, CMC shall deliver to Cabot such additional financial and other information and data with respect to CMC and its Subsidiaries and their business, properties, financial positions, results of operations and prospects as from time to timetime may be reasonably requested by Cabot.
(xi) Prior to issuance, such additional information regarding CMC shall deliver to Cabot copies of substantially final drafts of all press releases and other statements to be made available by CMC or any of its Subsidiaries to employees of CMC or any of its Subsidiaries or to the public concerning material developments in the business, properties, financial positionearnings, results of operations, financial condition or prospects of the Company CMC or any of its subsidiaries Subsidiaries or the relationship between (A) CMC or any of its Subsidiaries and (B) Cabot or any of its Affiliates. In addition, prior to the issuance of any such press release or public statement, CMC shall consult with Cabot regarding any changes (other than typographical or other similar minor changes) to such substantially final drafts. Immediately following the issuance thereof, CMC shall deliver to Cabot copies of final drafts of all press releases and other public statements.
(xii) CMC shall cooperate fully, and cause its accountants to cooperate, with Cabot to the extent reasonably requested by Cabot in the preparation of Cabot's public earnings releases, quarterly reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by Cabot with the SEC, any national securities exchange or otherwise made publicly available (collectively, "Cabot Public Filings"). CMC agrees to provide to Cabot all information that Cabot reasonably requests in connection with any Cabot Public Filings or that, in the judgment of Cabot's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. Such information shall be provided by CMC in a timely manner on the dates reasonably requested by Cabot (which may be earlier than the dates on which CMC otherwise would be required hereunder to have such information available) to enable Cabot to prepare, print and release all Cabot Public Filings on such dates as Cabot shall determine. CMC shall cause its accountants to consent to any reference to them as experts in any Cabot Public Filings required under any law, rule or regulation. If and to the Warrant Holder (extent reasonably requested by Cabot, CMC shall diligently and promptly review all drafts of such Cabot Public Filings and prepare in a diligent and timely fashion any portion of such Cabot Public Filing pertaining to CMC. Prior to any printing or Initial Holder) may requestpublic release of any Cabot Public Filing, an appropriate executive officer of CMC shall, if requested by Cabot, certify that the information relating to CMC, any CMC Affiliate or the CMC Business in such Cabot Public Filing is accurate, true and correct in all material respects. Unless required by law, rule or regulation, CMC shall not publicly release any financial or other information which conflicts with the information with respect to CMC, any CMC Affiliate or the CMC Business that is included in any Cabot Public Filing without Cabot's prior written consent. Prior to the release or filing thereof, Cabot shall provide CMC with a draft of any portion of a Cabot Public Filing containing information relating to CMC and its Subsidiaries and shall give CMC an opportunity to review such information and comment thereon; provided that Cabot shall determine in its sole discretion the Company final form and content of all Cabot Public Filings.
(b) Cabot shall cooperate fully, and cause its accountants to cooperate fully, with CMC to the extent reasonably requested by CMC in the preparation of any
(c) Auditors and Audits; Annual Statements and Accounting. CMC agrees that, for so long as Cabot is required to consolidate CMC's results of operations and financial position or to account for its investment in CMC under the equity method of accounting (in accordance with generally accepted accounting principles):
(i) CMC shall not select a different accounting firm than PricewaterhouseCoopers, LLP to serve as its (and its Subsidiaries') independent certified public accountants ("CMC's Auditors") without Cabot's prior written consent (which shall not be unreasonably withheld).
(ii) CMC shall use its reasonable best efforts to enable the CMC's Auditors to complete their audit such that they will date their opinion on CMC's audited annual financial statements on the same date that Cabot's independent certified public accountants ("Cabot's Auditors") date their opinion on Cabot's audited annual financial statements (the "Cabot Annual Statements"), and to enable Cabot to meet its timetable for the printing, filing and public dissemination of the Cabot Annual Statements.
(iii) CMC shall provide to Cabot on a timely basis all information
(iv) CMC shall authorize CMC's Auditors to make available to Cabot's Auditors both the personnel who performed or are performing the annual audit of CMC and work papers related to the annual audit of CMC, in all cases within a reasonable time prior to CMC's Auditors' opinion date, so that Cabot's Auditors are able to perform the procedures they consider necessary to take responsibility for the work of CMC's Auditors as it relates to Cabot's Auditors' report on Cabot's statements, all within sufficient time to enable Cabot to meet its timetable for the printing, filing and public dissemination of the Cabot Annual Statements.
(v) CMC shall provide Cabot's internal auditors access to CMC's and its Subsidiaries, books and records so that Cabot may conduct reasonable audits relating to the financial statements provided by CMC pursuant hereto as well as to the internal accounting controls and operations of CMC and its Subsidiaries.
(vi) CMC shall give Cabot as much prior notice as reasonably practical of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles from those in effect on the date hereof. CMC will consult with Cabot and, if requested by Cabot, CMC will consult with Cabot's independent public accountants with respect thereto. CMC will not make any such determination or changes without Cabot's prior written consent if such a determination or a change would be sufficiently material to be required to deliver be disclosed in CMC's financial statements as filed with the SEC or otherwise publicly disclosed therein.
(vii) Notwithstanding clause (vi) above, CMC shall make any changes in its accounting estimates or accounting principles that are requested by Cabot in order for CMC's accounting estimates and principles to be consistent with those of Cabot. Nothing in this Section 4.1 shall require CMC to violate any agreement with any of its customers regarding the confidentiality of commercially sensitive information and notices relating to that customer or its business; provided that in the event that CMC is required under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.4.1 to disclose any such information, CMC shall use all commercially reasonable
Appears in 1 contract
Sources: Initial Public Offering and Distribution Agreement (Cabot Microelectronics Corp)
Financial and Other Information. The Company will keepKeep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions, and will cause furnish to Agent and Lenders:
(a) within 90 days after the end of each Fiscal Year of Parent Borrower, its Subsidiaries audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte & Touche LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception (except for any such qualification or exception resulting from any current maturity of Loans hereunder) and without any qualification or exception as to keep, proper books the scope of record such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and account results of operations of Parent Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied throughout (it being understood that the periods covered in which full and true entries will be made of all dealings or transactions relating obligation to their business and affairs, furnish the foregoing to Agent and the Company Lenders shall cause be deemed to be furnished satisfied in respect of any Fiscal Year of Parent Borrower by the filing of Parent Borrower’ annual report on Form 10-K for such Fiscal Year with the Commission to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:the extent the foregoing are included therein);
(ib) As within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Parent Borrower, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, 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, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Parent Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (it being understood that the obligation to furnish the foregoing to Agent and the Lenders shall be deemed to be satisfied in respect of any Fiscal Quarter of Parent Borrower by the filing of Parent Borrower’s quarterly report on Form 10-Q for such Fiscal Quarter with the Commission to the extent the foregoing are included therein);
(c) during any Reporting Trigger Period, as soon as practicable available, and in any event within thirty (30) 30 days after the end of each month, including the month of March, June, September and December (Ai) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Obligors and their Subsidiaries and on a consolidating basis for each Obligor, from the Obligors’ internal operating statements (which are not intended to be prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practiceGAAP), (B) setting forth in each case in comparative form, form the figures for the actual results for the corresponding month and year-to-date period or periods of (or, in the immediately preceding fiscal year case of the balance sheet, as of the end of) the previous Fiscal Year, certified by a Financial Officer of Parent Borrower as fairly presenting the financial position and amounts projected results of operations for such month pursuant to Section 10(a)(iv)month, and (iiiii) a copy of variance analysis to the monthly Credit Review Alert Reportbudget for the P&L and cash flow on a segment basis, each in a form reasonably acceptable to Agent and Required Lenders;
(d) concurrently with delivery of financial statements under clauses (a), (b) and (c) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by a Financial Officer of the Parent Borrower which, inter alia shall (i) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) Within forty-five set forth reasonably detailed calculations demonstrating compliance with the financial covenant set forth in Section 10.3 (45whether or not a Financial Covenant Trigger Period is in effect), (iii) days after state whether any change in GAAP or in the application thereof has occurred since the date of Parent Borrower’s audited financial statements referred to in Section 9.1.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (iv) identify all Subsidiaries existing on the date of such certificate and indicate, for each such Subsidiary, whether such Subsidiary is an Obligor and/or a Foreign Subsidiary and/or an Immaterial Subsidiary and whether such Subsidiary was formed or acquired since the end of the previous Fiscal Quarter;
(e) promptly following any request therefor, provide information and documentation reasonably requested by Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, the Beneficial Ownership Regulation, and the AML Legislation;
(f) not later than February 15 of each Fiscal Quarter including Year, projections of Borrowers’ consolidated balance sheets, results of operations, cash flow, Total Availability and each component of Total Availability for such Fiscal Year, quarter by quarter;
(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the fourth trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(4thh) Fiscal Quarterpromptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Parent Borrower or any Subsidiary with the Commission or with any national securities exchange, as the case may be (it being understood that the obligation to furnish the foregoing to Agent and the Lenders shall be deemed to be satisfied to the extent the foregoing are filed with the Commission);
(i) promptly upon Obligors’ receipt thereof, (A) unaudited consolidated statements copies of incomeall material compliance reports filed and material correspondence regarding any active or pending investigation or enforcement action concerning any Obligor with any state, retained earnings federal, local or foreign regulatory agency and cash flows (B) all material correspondence, if any, alleging violation of or requesting compliance by any Obligor with laws, regulations, etc. or requests for information pursuant to interstate commerce laws, antitrust laws, securities laws, worker safety laws (OSHA), etc.;
(j) except to the extent already provided for in this Section 10.1.2, promptly after the sending thereof, copies of any material deliverable or proposed waiver, consent, or amendment concerning any of the Company for such quarter Senior Term Loan Documents and/or the Term Loan Documents;
(k) promptly upon the effectiveness thereof, (A) a description of each license from a Governmental Authority which becomes effective after the Closing Date and for is material to the period from the beginning conduct of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets business of the Company Obligors and their respective Subsidiaries, taken as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Companya whole, and (B) in comparative forma description of each material contract or agreement to which any Obligor is a party, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year including, without limitation, each Specified Vendor Receivables Financing Document (other than contracts and amounts projected for such periods agreements disclosed to Agent pursuant to Section 10(a)(iv10.1.2(h), together with a written report (agreements described on Schedule 9.1.23 or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such yearSchedule 10.2.1, and consolidated balance sheets without duplication of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope real property leases identified on Schedule 2.03 to the Warrant Holders Perfection Certificate most recently delivered to Agent and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory Licenses identified on Schedule 4.04 to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter Perfection Certificate most recently delivered to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(iiAgent);
(vl) If prior to any sale, transfer or other disposition of Revolver Priority Collateral in an aggregate amount in excess of $5,000,0003,000,000 in reliance on Section 10.2.5(j), Borrowers shall deliver to Agent a Borrowing Base Report, in form and substance acceptable to Agent in all respects, showing that, after giving pro forma effect to such disposition, no Overadvance exists, Canadian Revolver Usage does not exceed the Canadian Borrowing Base, UK Revolver Usage does not exceed the UK Borrowing Base, U.S. Revolver Usage does not exceed the U.S. Borrowing Base and Total Revolver Usage does not exceed the Total Borrowing Base;
(m) (i)(I) from the period beginning on the Seventh Amendment Effective Date to and including the date that is 30 days after the Seventh Amendment Effective Date, by no later than 11:00 p.m. (New York time) on Wednesday of each week, and (II) at all other times, by no later than 11:00 p.m. (New York time) on the last Wednesday of each fiscal month, an updated 13-week statement of projected receipts and disbursements (each such statement, a “Rolling 13-Week Cash Flow Forecast”) in form and detail reasonably satisfactory to Agent and Required Lenders, (ii) on each Wednesday, a report showing actual receipts and disbursements through the prior week for North America and Europe-Africa, including a variance report showing the variance to the immediately prior Rolling 13-Week Cash Flow Forecast with qualitative commentary explaining any material variations to such Rolling 13-Week Cash Flow Forecast,
(n) on each Wednesday, a flash report in a form reasonably acceptable to Agent and Required Lenders providing estimated revenues by segment and those other key performance indicators by major location reasonably produced on a weekly basis for the prior week or those available monthly on a monthly basis for the prior month;
(o) on the 15th day of each calendar month, an accounts payable aging report as of the prior fiscal month-end for Horizon Global Company shall otherwise prepare LLC, Horizon Global Americas, Inc. and Westfalia- Automotive GmbH;
(p) [reserved]; and
(q) (m) such other reports and information (financial or have available otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business. Each Obligor represents and warrants that it and each of its Subsidiaries either (i) has no registered or publicly traded securities outstanding or (ii) files its financial statements with the Commission and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, each Borrower hereby (x) authorizes Agent to make the financial statements to be provided under Section 10.1.2(a) and (b) above, along with the Loan Documents, available to all Lenders and (y) agrees that at the time such financial statements are provided hereunder, they shall already have been made available to holders of its securities. The Obligor will not request that any other material be posted to all Lenders without expressly representing and warranting to Agent in writing that (A) such materials do not constitute material non-public information for within the Company meaning of the federal securities laws (“MNPI”) or (B) (i) the Parent Borrower and its Subsidiaries on a consolidated basishave no outstanding publicly traded securities, or shall provide their Governing Bodies including 144A securities, and (as applicableii) with if at any financial information not otherwise provided for herein, they shall also furnish time the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company Parent Borrower or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systemsissues publicly traded securities, including any comment letters (144A securities, the Obligors will, following the issuance of such securities, make such materials that do constitute MNPI at the time of issuance of such securities publicly available by press release or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to public filing with the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementCommission.
Appears in 1 contract
Sources: Loan Agreement (Horizon Global Corp)
Financial and Other Information. The Company Promptly furnish to Lender ------------------------------- or its agents all such financial or other information as Lender shall reasonably request, and, at the request of Lender, notify its auditors and accountants that Under is authorized to obtain such information directly from them. Without limitation of the foregoing, Borrower will keep, and will cause its Subsidiaries furnish to keep, proper books of record and account Lender in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company such detail as Lender shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesrequest:
(ia) As soon as practicable and in any event within thirty (30) Not later than 120 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal QuarterYear of Borrower, (A) unaudited consolidated statements balance sheets of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to Borrower as at the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated related unaudited statements of income, expense and retained earnings and statements of cash flows flow of the Company Borrower for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, case in comparative form, corresponding form figures for the period covered by the preceding annual audit and as of the end of the preceding previous Fiscal Year, all in reasonable detail, fairly presenting in all material respects the financial position of which Borrower and the results of operations of Borrower for the Fiscal Year then ended, and prepared in accordance with GAAP. Such statements and shall be accompanied by a certificate of the chief financial officer or chief accounting officer of Borrower.
(b) Not later than 90 days after the close of each fiscal quarter of Borrower, unaudited balance sheets of Borrower as at the end of such period, and unaudited statements of income and expense from the beginning of the Fiscal year to the end of each such period, for Borrower, all in reasonable detail, fairly presenting in all material respects the financial position and results of operations of Borrower, in each case, prepared in accordance with GAAP and consistent with the audited financial statements required pursuant to Section 6.1(e). Such statements shall be accompanied by a certificate of the chief financial officer or accounting officer of Borrower stating that, based upon such examination or investigation as such officer shall have deemed necessary to enable him to render an informed opinion in respect thereof, to the best of his knowledge and belief the financial statements are materially correct and no Default exists under this Agreement and is continuing except for those, if any, described in such certificate in reasonable detail detail.
(c) Not later than 120 days after the close of each Fiscal Year of EDC, audited consolidated and satisfactory unaudited consolidating balance sheets of EDC and its consolidated Subsidiaries as at the end of such Fiscal Year and related audited consolidated and unaudited consolidating audited statements of income, expense and retained earnings and statements of cash flow of EDC and its consolidated Subsidiaries for such year, all in scope reasonable detail, fairly presenting in all material respects the financial position of EDC and its consolidated Subsidiaries and the results of operations of EDC and its consolidated Subsidiaries for the Fiscal Year then ended, and prepared in accordance with GAAP. Such statements required hereunder shall be examined and accompanied by a report of independent certified public accountants which shall not contain any qualifications or exceptions as to scope.
(d) Not later than 90 days after the close of each fiscal quarter of EDC, unaudited consolidated and consolidating balance sheets of EDC and its consolidated Subsidiaries as at the end of such period, and consolidated and consolidating statements of income and expense from the beginning of the Fiscal Year to the Warrant Holders end of each such period, for EDC and its consolidated Subsidiaries, all in reasonable detail, fairly presenting in all material respects the consolidated and consolidating financial position and results of operations of EDC and its consolidated Subsidiaries, in each case, prepared in accordance with GAAP and consistent with the audited financial statements required pursuant to Section 6.1(c) above, and ------ certified to be materially correct by the chief financial officer or the chief accounting officer of EDC.
(e) Not later than 120 days after the close of each Fiscal Year of LSB, LSB's 10K Report filed with the Securities and Exchange Commission, the audited consolidated and unaudited consolidating balance sheets of LSB and its consolidated Affiliates as at the end of such Fiscal Year and related audited consolidated and unaudited consolidating statements of income, expense and retained earnings and audited statements of cash flow of LSB and its consolidated Affiliates for such year, setting forth in each case in comparative form figures for the previous Fiscal Year, all in reasonable detail, fairly presenting the financial position of LSB and its consolidated Affiliates and the results of operations of LSB and its consolidated Affiliates for the Fiscal Year then ended, and prepared in accordance with GAAP. Such statements required hereunder shall be examined and accompanied by a report of independent certified public accountants which shall not contain any qualifications as to scope; and such report shall also be accompanied by a certificate of such accountants stating that in the course of performing their examination such accountants did not become aware of the existence of any default under this Agreement, except for those, if any, described in such certificate in reasonable detail. In addition, the chief financial officer or accounting officer of LSB shall provide a certificate which shall also include a statement by such officer that no breach, default or event of default has occurred and is continuing under any document to which LSB or any consolidated Affiliate is a party that evidences any Indebtedness of LSB or any such Affiliate which exceeds, individually or together with any related Indebtedness, $5,000,000, or if any such breach, default or event of default has occurred, explaining the nature of such breach, default or event of default and the status thereof. Such certificate shall also include a statement from such officer that LSB is in compliance with all covenants contained in this Agreement relating to the financial condition of LSB, and such statement shall be accompanied by the Company and audited by ▇▇▇▇calculations of such financial covenants.
(f) Not later than 90 days after the close of each fiscal quarter of ▇▇▇, ▇▇▇▇'▇ ▇▇▇ & ▇▇▇▇▇▇▇▇Report filed with the Securities and Exchange Commission and the unaudited consolidated balance sheets of LSB and its consolidated Affiliates as at the end of such period, CPAs, or another respected firm and unaudited consolidated statements of independent certified public accountants selected by income and expense from the Company and reasonably satisfactory beginning of the Fiscal year to the Warrant Holdersend of each such period, whose opinion shall be unqualified for LSB and shall be its consolidated Affiliates, all in reasonable detail, fairly presenting in all material respects the consolidated financial position and results of operations of LSB and Affiliates, in each case, prepared in accordance with GAAP and generally accepted auditing standards, (Bconsistent with the audited financial statements required pursuant to Section 6.1(e) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which ------ above. Such statements shall be issued accompanied by a certificate of the chief financial officer or the chief accounting officer of LSB stating that, based upon such examination or investigation as such officer shall have deemed necessary to enable him to render an informed opinion in respect thereof, to the best of his knowledge and belief, such financial statements are materially correct and no Default under this Agreement exists and is continuing except for those, if any, described in such certificate in reasonable detail. Such certificate shall also include a statement from such officer that LSB is in compliance with all financial covenants contained in this Agreement relating to the financial condition of LSB, and such statement shall be accompanied by the actual calculations of such financial covenants.
(g) Promptly after Borrower or any Affiliate receives the same, copies of management letters provided to Borrower by its independent certified public accountants;
(h) Promptly after their preparation, copies of any and all proxy statements, financial statements, and reports which Borrower, or LSB or EDC sends to its shareholders or holders of its Indebtedness, and copies of any and all periodic special reports, as well as copies of all other reports submitted registration statements, filed by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each auditBorrower, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection LSB or EDC with the Projections covering the previous Fiscal Year, Securities and Exchange Commission or similar State authority;
(Di) the certification Deliver to Lender within 30 days of the end of each quarter, a compliance certificate signed by Borrower's Chief Financial Officer or the Chief Accounting Officer certifying that Borrower is in compliance with all of the Company terms and conditions of the Agreement and that all such Financial Statements present fairly in accordance with GAAP no Default exists.
(j) Such additional information as Lender may from time to time reasonably request regarding the financial position, results and business affairs of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document Borrower or any Subsidiary articles, operating agreement or bylaws, or by Guarantor and which are kept in the Company or any ordinary course of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Environmental Group International LTD)
Financial and Other Information. The Company will keep, Mandalay shall deliver to Collateral Agent (and will cause its Subsidiaries Collateral Agent agrees to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished promptly distribute to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesof the Lenders) the following financial information:
(i) As soon as practicable practicable, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) 60 days after the end of each Fiscal Quarter including (other than the fourth (4th) Fiscal QuarterQuarter in any Fiscal Year), (Ai) unaudited the consolidated statements balance sheet of income, retained earnings Mandalay and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to its Subsidiaries as at the end of such Fiscal Quarter and the consolidated statement of operations for such Fiscal Quarter, and unaudited consolidated its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Mandalay) balance sheets and statements of operations as at and for the portion of the Company as of the end of Fiscal Year ended with such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail. Such financial statements shall be certified by a Senior Officer of Mandalay as fairly presenting the financial condition, prepared results of operations and cash flows of Mandalay and its Subsidiaries in accordance with GAAP (except other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal adjustments and year-end accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarteraudit adjustments;
(iiiii) Within ninety (90) As soon as practicable, and in any event within 100 days after the end of each Fiscal Year, (Ai) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets sheet of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company Mandalay and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year and the consolidated statements of operations, stockholders’ equity and cash flows, in each case of Mandalay and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Mandalay) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Mandalay and reasonably satisfactory to the Required Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions as to the scope of the audit nor to any other qualification or exception determined by the Required Lenders in their good faith business judgment to be adverse to the interests of the Required Lenders. Such accountants’ report and opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Mandalay’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.1(z) and 6.1(aa), have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Mandalay in the manner prescribed by this Agreement;
(iii) As soon as practicable, and in any event within 100 days after the commencement of each Fiscal Year, a budget and projection by Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next four succeeding Fiscal Years, including for the first such Fiscal Year, projected quarterly consolidated balance sheets, statements of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Mandalay and its Subsidiaries, all in reasonable detail;
(iv) As soon as practicable and in Promptly after request by any event before November 30 Creditor, copies of each yearany detailed audit reports, a Budget and Projections for each month management letters or recommendations submitted to the Board of Directors (or the audit committee of the next succeeding fiscal year (including a statement Board of underlying assumptionsDirectors) for of Mandalay by independent accountants in connection with the Companyaccounts or books of Mandalay or any of its Subsidiaries, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii)or any audit of any of them;
(v) If As soon as practicable, and in any event (A) within 30 days after the Company shall otherwise prepare or have available financial statements end of the first three Fiscal Quarters in each Fiscal Year, and other information for (B) 60 days after the Company end of the fourth Fiscal Quarter in each Fiscal Year, a written report, in form and detail mutually acceptable to Mandalay and Collateral Agent, with a narrative report describing the results of operations of Mandalay and its Subsidiaries on a consolidated basisduring such Fiscal Quarter and detailing the status of development of each New Venture Entity, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for hereinincluding the amounts of Capital Expenditures and Investments made, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required reasonably anticipated to be furnished pursuant to the foregoing provisions of this Section 10(a)made, with respect thereto;
(vi) When Promptly after the same are available, (A) all significant reports copies of each annual report, proxy or written communications submitted financial statement or other report or communication sent to the Company or any stockholders of its Subsidiaries by its accountants in connection with each Mandalay, and copies of all annual, interim regular, periodic and special reports and registration statements which Mandalay may file or special audit be required to file with the SEC under Section 13 or review of any type 15(d) of the financial statements or related internal control systemsExchange Act, including any comment letters (or drafts thereof) and not otherwise required to be delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations the Lenders pursuant to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesother provisions of this Section;
(vii) PromptlyPromptly after the same are available, with copies of all amendments, consent letters, waivers or modifications tothe Nevada “Regulation 6.090 Report” and “6-A Report”, and copies of any material notices or reports provided by any Person written communication to the Company Mandalay or any of its Restricted Subsidiaries pursuant to the terms from any Gaming Board advising it of a violation of or in connection with, non-compliance with any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or Gaming Law by the Company Mandalay or any of its Subsidiaries to any such PersonRestricted Subsidiaries;
(viii) PromptlyPromptly after request by any Creditor, copies of any other report or other document that was filed by Mandalay or any of its Restricted Subsidiaries with any Governmental Agency;
(ix) Promptly upon obtaining knowledge thereofa Senior Officer becoming aware, but and in no any event less than 5 within five (5) Business Days prior to after becoming aware, of the occurrence of any Put Event(i) ”reportable event” (as such term is defined in Section 4043 of ERISA) or (ii) Prohibited Transaction in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than five (5) Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Mandalay or any of its Restricted Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto;
(x) As soon as practicable, and in any event within two (2) Business Days after a Senior Officer becomes aware of the existence of any condition or event which constitutes a Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action the applicable Lessee is taking or proposes to take with respect thereto;
(xi) Promptly upon a Senior Officer becoming aware, and in any event within five (5) Business Days after becoming aware, that (A) any Person has commenced a legal proceeding with respect to a claim against Mandalay or any of its Restricted Subsidiaries that is $10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (B) any creditor or certificate purchaser under a credit agreement or material lease has asserted a default thereunder on the part of Mandalay or any of its Restricted Subsidiaries, (C) any Person has commenced a legal proceeding with respect to a claim against Mandalay or any of its Restricted Subsidiaries under a contract that is not a credit agreement or material lease, which claim is in excess of $10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (D) any labor union has notified Mandalay of its intent to strike Mandalay or any of its Restricted Subsidiaries on a date certain and such strike would involve more than 100 employees of Mandalay or any of its Restricted Subsidiaries, or (E) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Mandalay or any of its Restricted Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Mandalay or any of its Restricted Subsidiaries are taking or propose to take with respect thereto;
(xii) Promptly, and in any event within five (5) Business Days of the effective date thereof, copies of (A) any and all amendments, modifications and waivers pertaining in any manner to any of the Mandalay Loan Agreements (or if applicable, any Replacement Loan Agreement) and (B) any and all Replacement Loan Agreements and the material agreements, documents and instruments relating thereto;
(xiii) Such other data and information as from time to time may be reasonably requested by any Creditor through Trustee or Collateral Agent, as the case may be; and
(ixxiv) From time A certificate addressed to time, such additional information regarding the business, properties, Creditors in a form acceptable to the Creditors with respect to its compliance with the Operative Documents to which it is a party concurrently with the financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder statements described in clauses (or Initial Holderp)(i) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a(p)(ii) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementabove.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating to their business furnish to Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As within ninety (90) days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis (for Holdings and its Subsidiaries), which consolidated statements shall be audited and certified (without a “going concern” qualification or other qualification as to scope of audit) by a firm of independent certified public accountants of recognized standing selected by the Loan Parties and reasonably acceptable to Agent (it being understood that Ernst & Young LLP is acceptable), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year;
(b) for each month ending during any Financial Covenant Trigger Period or on the date of occurrence of the trigger for any Financial Covenant Trigger Period, as soon as practicable available, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for any such month and within five (5) days after the year-to-date period, and an unaudited consolidated balance sheet occurrence of the Company trigger for any Financial Covenant Trigger Period, unaudited balance sheets as of the end of such monthmonth and the related statements of income for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis (for Holdings and its Subsidiaries), in an internal management reporting format, consistent with past practices, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by a Senior Officer of Loan Party Agent as being prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-as soon as available, and in any event within forty five (45) days after the end of each Fiscal Quarter including of the fourth (4th) Fiscal Quarterfirst three fiscal quarters of each fiscal year, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for each such quarter quarterly period, on a consolidated basis (for Holdings and its Subsidiaries), setting forth in comparative form corresponding figures for the period from the beginning of the then current preceding Fiscal Year to the end and certified by a Senior Officer of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company Loan Party Agent as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, being prepared in accordance with GAAP (except and fairly presenting the cash flows of the applicable Persons for such period, subject to normal year-end adjustments and accruals and the lack absence of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarterfootnotes;
(iiid) Within ninety concurrently with delivery of financial statements under clauses (90a) and (c) above (or concurrently with delivery of financial statements under clause (b) above during a Financial Covenant Trigger Period), and more frequently if requested by Agent while an Event of Default has occurred and is continuing, a Compliance Certificate executed by a Senior Officer of Loan Party Agent;
(e) not later than the earlier of seventy five (75) days after the end of each Fiscal YearYear or thirty (30) days after board approval thereof, (A) audited consolidated statements of income, retained earnings and cash flows projections of the Company Loan Parties’ and their Subsidiaries’ consolidated (for such year, Holdings and consolidated its Subsidiaries) (x) balance sheets and results of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures operations for the period covered by the preceding annual audit and as of the end of the preceding next Fiscal Year, all month by month, and cash flow and Availability for the next Fiscal Year, on a quarterly basis and (y) balance sheets and results of which statements operations and cash flow and Availability for the second and third Fiscal Years thereafter, on an annual basis;
(f) at Agent’s request (but in no event more frequently than once each calendar quarter, so long as no Default or Event of Default has occurred and is continuing), a listing of each Loan Party’s trade payables, specifying the trade creditor and balance sheets due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(g) promptly after the sending or filing thereof, copies of any final proxy statements, financial statements or reports that any Loan Party has generally made publicly available to its shareholders; copies of any regular, periodic and special reports (including reports on Form 8-K and 10-Q) or registration statements (other than registration statements on Form S-8) or prospectuses that any Loan Party files with the Securities and Exchange Commission; and copies of any press releases or other statements made available by a Loan Party to the public concerning material changes to or developments in the business of such Loan Party;
(h) at Agent’s request, after the filing thereof, copies of any annual information report or return (including all actuarial reports and other schedules and attachments thereto), required to be filed with a Governmental Authority, or the filing of any request for funding relief with the Superintendent in connection with each Pension Plan or any Canadian Pension Plan; promptly upon receipt, copies of any notice, demand, inquiry or subpoena received in connection with any Plan or Canadian Pension Plan from a Governmental Authority (including FSCO and the Superintendent) (other than routine inquiries in the course of application for a favorable IRS determination letter); at Agent’s request, copies of any annual return required to be filed with a Governmental Authority in connection with any other Plan or Canadian Pension Plan;
(i) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s or Subsidiary’s financial condition or business; and
(j) upon receipt or delivery thereof by or to any Loan Party or Subsidiary, any notice of “Default” or “Event of Default” (under and as defined in the Senior Note Documents, the Holdings Note Documents and the Permitted Senior Secured Debt Documents) and, without duplication of any report required to be provided hereunder, each material report required to be provided pursuant to the Senior Note Indenture, the Holdings Note Documents and the Permitted Senior Secured Debt Document and, upon execution thereof, any waiver, amendment or other modification to the Senior Note Documents, the Holdings Note Documents and the Permitted Senior Secured Debt Documents. Notwithstanding anything to the contrary contained herein, (a) delivery within the 90-day period specified in clause (a) above of copies of the annual report on Form 10-K of Holdings and its Subsidiaries for each applicable annual period (including all financial statement exhibits and financial statements incorporated by reference therein) prepared in compliance with the requirements therefor and filed with the Securities and Exchange Commission shall be deemed to satisfy the requirements of Section 10.1.2(a), (b) delivery within the 45-day period specified in reasonable detail clause (c) above of copies of the quarterly report on Form 10-Q of Holdings and satisfactory its Subsidiaries for each applicable quarterly period (including all financial statement exhibits and financial statements incorporated by reference therein) prepared in scope compliance with the requirements therefor and filed with the Securities and Exchange Commission shall be deemed to satisfy the Warrant Holders requirements of Section 10.1.2(c) and prepared by (c) documents required to be delivered pursuant to Section 10.1.2 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the Company and audited by ▇▇▇▇▇▇▇date (i) on which the Loan Party Agent posts such documents, ▇▇▇▇▇▇▇ & or provides a link thereto on the Loan Party Agent’s website on the Internet at the website address “▇▇▇▇▇▇▇▇, CPAs, ▇▇▇▇▇▇.▇▇▇”; or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (Bii) on which such accountants’ comment letter documents are posted on the CompanyLoan Party Agent’s internal financial behalf on an Internet or accounting systems Intranet website, if any, to which each Lender and Agent have access (whether a commercial, third-party website or controls which whether sponsored by Agent); provided that the Loan Party Agent shall be issued as well as deliver paper copies of all other reports submitted by such documents to Agent or any Lender that requests the Company’s accountants; and the Company agrees that they shall request Loan Party Agent to deliver such a comment letter to be prepared in connection with each audit, (C) paper copies until a written report (which may include a SEC Report that contains request to cease delivering paper copies is given by Agent or such Lender. Agent shall have no obligation to request the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification delivery or to maintain copies of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial positiondocuments referred to above, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of shall have no responsibility to monitor compliance by the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) Loan Party Agent with any financial information not otherwise provided such request for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses theretodelivery, and (B) unless disclosed in SEC Reports, acquisition analyses each Lender shall be solely responsible for material acquisitions, presentations requesting delivery to lenders, financial institutions it or potential investors, consultants’ reports relating to the Company and/or maintaining its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementdocuments.
Appears in 1 contract
Sources: Loan and Security Agreement (Cooper-Standard Holdings Inc.)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record account with respect to its business activities and account ensure that proper entries are made reflecting all its financial transactions in accordance with sound business practices sufficient to allow the preparation based thereon of financial statements in accordance with GAAP; and cause to be prepared and to be furnished to Agents and Lenders the following (all to be prepared in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:on a consistent basis):
(i) As as soon as practicable available, and in any event within one hundred (100) days after the close of each Fiscal Year, audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, Shareholders’ equity and cash flow, on a Consolidated basis, certified without material qualification by a firm of independent certified public accountants of recognized national standing selected by Borrowers (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date periodfirst two calendar months of each of Borrowers’ Fiscal Quarters, and an unaudited un audited consolidated balance sheet sheets of the Company Borrowers and their respective Subsidiaries as of the end of such month and the related consolidated statements of operations and rein vested earnings and of cash flows for such month and for the portion of Borrowers’ Fiscal Year ended at the end of such month, prepared in accordance with GAAP (except for normal adjustments on a Consolidated basis and accruals and the lack of footnotes and other presentation items) consistent with past practicethe financial information prepared for Ryerson’s management, (B) setting forth in each case in comparative form, form the corresponding figures for the actual results preceding Fiscal Year: provided that so long as Availability for each day during a Fiscal Quarter is at least $300,000,000, the corresponding foregoing monthly financial statements in respect of each calendar month and year-to-date periods in of such Fiscal’ Quarter shall be furnished to Administrative Agent within 30 days after the immediately preceding fiscal year and amounts projected for end of such month pursuant to Section 10(a)(iv), and Fiscal Quarter;
(iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-as soon as available, and in any event within forty five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning first three Fiscal Quarters of the then current each Fiscal Year to the end of such Fiscal QuarterYear, and unaudited consolidated balance sheets of the Company Borrowers and their Subsidiaries as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals Quarter and the lack related unaudited statements of footnotes income and other presentation items) consistent with past practice, cash flow for such Fiscal Quarter and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding portion of Borrowers’ Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)then elapsed, together with on a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such yearConsolidated basis, setting forth in each case, case in comparative form, form the corresponding figures for the period covered preceding Fiscal Year and certified by the preceding annual audit and principal financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on fairly presenting the Company’s internal Consolidated financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; position and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(iv) concurrently with the delivery of cash flows each Borrowing Base Certificate pursuant to Section 8.4, a summary of all of each Borrower’s trade payables as of the Company last Business Day of each month, specifying the name of and its consolidated Subsidiaries on balance due each trade creditor, and, at Administrative Agent’s or any Lender’s request, monthly detailed trade payable agings in form acceptable to Administrative Agent; provided that as long as Availability for each day during a consolidated basisFiscal Quarter is at least $150,000,000, as at such summary may be furnished quarterly within 30 days after the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 Quarter; provided further that such summary information shall not be required to be delivered until following the full implementation of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii)SAP by Borrower;
(v) If promptly after the Company shall otherwise prepare sending or have available financial filing thereof, copies of any proxy statements; copies of any regular, periodic and special reports or registration statements and or prospectuses that any Borrower files with the SEC or any other information for the Company and its Subsidiaries on a consolidated basisGovernmental Authority, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same securities exchange; and copies of any press releases or other statements made available by a Borrower to the Warrant Holders public concerning material changes to or developments in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions business of this Section 10(a);such Borrower; and
(vi) When available, such other reports and information (Afinancial or otherwise) all significant reports or written communications submitted as any Agent may reasonably request from time to the Company or any of its Subsidiaries by its accountants time in connection with each annualany Collateral or any Borrower’s, interim Subsidiary’s or special audit other Obligor’s financial condition or review business. Notwithstanding the foregoing, with respect to any financial statements that include all or any portion of any type October 2007, it is understood and agreed that such financial statements will be pre pared on a basis consistent with Schedule 10.1.3. Concurrently with the delivery of the financial statements or related internal control systemsdescribed in clauses (i), including any comment letters (or drafts thereofii) delivered to management and all responses thereto, and (Biii) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (10.1.3 or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.more frequently, if
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(a) (i) As as soon as practicable available, and in any event within thirty 120 days after the Closing Date, (30A) an opening balance sheet as of a date not later than July 17, 2015, on a consolidated basis for Holdings, which balance sheet shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and (B) an opening balance sheet as of a date not later than July 17, 2015, unaudited and on a consolidating basis for each of the other Borrowers and Subsidiaries, (ii) as soon as available, and in any event within 120 days after the close of Fiscal Year 2015, (A) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for the period from the Closing Date through the end of such Fiscal Year, on a consolidated basis for Holdings, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information reasonably acceptable to Lender, and (B) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for the period from the Closing Date through the end of such Fiscal Year, unaudited and on a consolidating basis for the other Borrowers and Subsidiaries, and (iii) as soon as available, and in any event within 120 days after the close of each Fiscal Year thereafter, (A) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for such Fiscal Year, on a consolidated basis for Holdings, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information reasonably acceptable to Lender, and (B) a balance sheet as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for such Fiscal Year, unaudited and on a consolidating basis for the other Borrowers and Subsidiaries;
(b) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer or Treasurer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting in all material respects the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-five concurrently with delivery of financial statements under clauses (45a) days after and (b) above, or more frequently if requested by Lender while a Default or Event of Default exists, a Compliance Certificate executed by the end chief financial officer or Treasurer of each Fiscal Quarter including the fourth Borrower Agent;
(4thd) Fiscal Quarterconcurrently with delivery of financial statements under clause (a) above, (A) unaudited consolidated statements copies of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Borrowers by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiie) Within ninety (90) no later than 60 days after the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Borrowers' consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, and cash flow for the next Fiscal Year, month by month;
(f) at Lender's request, a listing of each Borrower's trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Lender;
(g) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(h) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(i) such other reports and information (financial or otherwise) as Lender may reasonably request from time to time in connection with any Collateral or any Borrower's, Subsidiary's or other Obligor's financial condition or business;
(j) as soon as available, and in any event within 120 days after the Warrant Holder close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to Lender;
(k) upon receipt or Initial Holderdelivery thereof by or to any Obligor or Subsidiary, any notice of "Default" or "Event of Default" (under and as defined in the Senior Debt Documents) may request; provided that the Company shall not be and, without duplication of any report required to deliver information be provided hereunder, each material report required to be provided pursuant to the Senior Loan Agreement and, upon execution thereof, any waiver, amendment or other modification to the Senior Debt Documents;
(l) upon receipt or delivery thereof by or to any Borrower, any notice of "Default" or "Event of Default" (under and notices under this Section 10(aas defined in the Factoring Agreements) if and, without duplication of any report required to be provided hereunder, each material report required to be provided pursuant to the Warrant Holder Factoring Agreements and, upon execution thereof, any waiver, amendment or other modification to the Factoring Agreements; and
(m) at Lender's request at any time after any Borrower files or Initial Holder) is receiving consents to the same information filing of a consolidated income tax return with any Person other than Borrowers and notices as a Purchaser Subsidiaries under the Note limited circumstances set forth in Section 10.2.12, provide Lender with true, correct and Warrant Purchase Agreementcomplete copies of all filed consolidated income tax returns for the Person with which such Borrower files or consents to the filing of such consolidated income tax returns and evidence that such Person has timely and fully paid all Taxes owing to Governmental Authorities under such returns.
Appears in 1 contract
Financial and Other Information. The Company will keepExcept as otherwise expressly provided for in this Agreement, and will cause its Subsidiaries to keep, Borrower shall keep proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings and transactions of or transactions relating in relation to their the business and affairsaffairs of Borrower and its consolidated subsidiaries, in accordance with GAAP consistently applied, and the Company Borrower shall cause to be furnished to each Warrant Holder for so long the Agent (with copies to the other Lenders, from time to time and in a form acceptable to the Agent, such Warrant Holder holds any Warrant or Warrant Sharesinformation as the Agent may reasonably request, including without limitation, the following:
(ia) As as soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Yearfiscal year of Borrower, (A) audited consolidated and consolidating statements of income, retained earnings and cash flows flow of the Company Borrower and its consolidated subsidiaries for such each year, and a consolidated and consolidating balance sheets sheet of the Company as of the end of Borrower and its consolidated subsidiaries for such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Yearfiscal year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders Agent and prepared certified to Borrower by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of such independent certified public accountants as are selected by the Company Borrower and reasonably satisfactory to the Warrant HoldersAgent, whose opinion shall be unqualified in scope and shall be prepared in accordance with GAAP substance satisfactory to the Agent; and generally accepted auditing standards, (Bii) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (CSEC 10(K) a written report (which may include a SEC Report that contains the same information) providing explanations filings of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal YearBorrower;
(ivb) As as soon as practicable and in any event before November 30 within forty five (45) days after the end of each quarterly accounting period in each fiscal year of Borrower:
(i) consolidated and consolidating statements of income and retained earnings of Borrower and its consolidated subsidiaries for such quarterly period and for the period from the beginning of the then current fiscal year to the end of such quarterly period, and a consolidated and consolidating balance sheet of Borrower and its consolidated subsidiaries as of the end of such quarterly period, setting forth in each case, in comparative form, figures for the corresponding periods in the preceding fiscal year, all in reasonable detail and certified as accurate by the chief financial officer of Borrower, subject to changes resulting from normal year end adjustments, (ii) copies of all SEC 10(Q) filings of Borrower, (iii) a Budget and Projections for each month compliance certificate of the next succeeding fiscal year chief financial officer of Borrower in substantially the form attached as Exhibit 7A (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii"COMPLIANCE CERTIFICATE");
(vc) If as soon as practicable and in any event within twenty five (25) days after the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on end of each monthly accounting period in each fiscal year of Borrower, a consolidated basis, or shall provide their Governing Bodies (Borrowing Base Certificate computed as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systemslast day of such month, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or signed by the Company assistant treasurer or any chief financial officer of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventBorrower; and
(ixd) From time to timeupon request and within 10 Business Days thereafter (i) an aged trial balance of all Accounts indicating which Accounts are thirty (30), such additional information regarding sixty (60) and ninety (90) days past the business, properties, financial position, results of operations, or prospects original invoice date of the Company or any original invoice related thereto and listing the names of all Account Debtors, (ii) a listing of accounts payable of Borrower and its consolidated subsidiaries as the Warrant Holder indicating which accounts payable are more than thirty (or Initial Holder30) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementdays past due.
Appears in 1 contract
Sources: Loan Agreement (Andersons Inc)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 120 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Borrowers and Subsidiaries (provided that the results of the Grace Companies shall not be included in such monthly reporting), setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-five (45) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter including quarter, unaudited balance sheets as of the fourth (4th) Fiscal Quarter, (A) unaudited consolidated end of such quarter and the related statements of income, retained earnings income and cash flows of the Company flow for such quarter and for the period from the beginning portion of the then current Fiscal Year to the end of such Fiscal Quarterthen elapsed, on a consolidated basis for Borrowers and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarterits Subsidiaries, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) setting forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered certified by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(Bd) such accountants’ comment letter on concurrently with delivery of financial statements under clauses (a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the Company’s internal chief financial or accounting systems or controls which shall be issued as well as officer of Borrower Agent;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the such financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesstatements;
(viif) Promptlyby January 31st of each Fiscal Year, with copies projections of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionBorrowers’ consolidated balance sheets, results of operations, cash flow and Availability and Excess Availability for such Fiscal Year on a monthly basis and the following Fiscal Year on a quarterly basis;
(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(h) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by an Obligor to the public concerning material changes to or developments in the business of such Obligor;
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(j) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business (including, without limitation, the financial condition or business of the Company or Grace Companies). Simultaneously with retaining accountants for their annual audit, Borrowers shall send a letter to the accountants, with a copy to Agent and Lenders, notifying the accountants that one of the primary purposes for retaining their services and obtaining audited financial statements is for use by Agent and Lenders. Agent is authorized to send such notice if Borrowers fail to do so for any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementreason.
Appears in 1 contract
Financial and Other Information. The Company will keep, Borrower and will cause its Subsidiaries to keep, proper Parent shall keep adequate records and books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of reflecting all dealings or transactions relating to their business and affairsfinancial transactions, and the Company shall cause furnish to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesAgent and Lenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Parent and its Subsidiaries, together with all supporting schedules and footnotes, which consolidated statements shall be audited and certified (30without qualification) by Ernst & Young or any other firm of independent certified public accountants of recognized national standing selected by Parent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date periodfirst three Fiscal Quarters of each Fiscal Year, and an unaudited consolidated balance sheet of the Company sheets as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals Fiscal Quarter and the lack related statements of footnotes income and other presentation items) consistent with past practicecash flow for such month and for the portion of the Fiscal Year then elapsed, (B) on a consolidated basis for Parent and its Subsidiaries, setting forth in comparative form, form corresponding figures for the actual results for the corresponding month preceding Fiscal Year and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) certified by a copy manager of the monthly Credit Review Alert ReportBorrower;
(iic) Within forty-five (45) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter including (but within 75 days after the fourth (4th) last Fiscal QuarterQuarter in a Fiscal Year), (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterQuarter and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, all on a consolidated basis for Borrower and Borrower’s Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by a manager of which statements and balance sheets shall be in reasonable detail, Borrower as prepared in accordance with GAAP (except and fairly presenting the financial position and results of operations for such quarter and period, subject to normal year-end adjustments and accruals the absence of footnotes;
(d) concurrently with delivery of financial statements under clause (c) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by a manager of Borrower;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters submitted to Parent and the lack of footnotes and other presentation items) consistent Borrower by their accountants in connection with past practicesuch financial statements, and certified as accurate promptly upon receipt thereof, any final comment letter submitted by such accountants to management in connection with an annual audit;
(f) not later than 30 days prior to the end of each Fiscal Year, projections of Borrower’s consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month;
(g) at any time upon Agent’s request, all internal and external valuation reports and reviews relating to the Eligible Portfolio Investments (including all valuation reports delivered by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances Approved Third-Party Appraiser in connection with the Projections covering such Fiscal Quarterquarterly appraisals of Unquoted Investments), and any other information relating to the Eligible Portfolio Investments as requested by the Agent or any Lender;
(iiih) Within ninety (90) as soon as available, and in any event within 45 days after the end of each Fiscal YearQuarter, a copy of Borrower’s loan data tape in a format reasonably acceptable to Agent, which shall include but not be limited to the following information: (i) for each Portfolio Investment, the name and number of the related Portfolio Company, the collection status, the loan status, an indication of whether or not such Portfolio Investment is an Eligible Portfolio Investment, the date of each scheduled payment and the outstanding balance, (Ay) audited consolidated statements of income, retained earnings and cash flows of the Company Borrowing Base for such yeareach Eligible Portfolio Investment, and consolidated balance sheets of the Company such other information as of the end of such year, setting forth in each case, in comparative form, corresponding figures may be reasonably required for the period covered Backup Servicer to perform its duties under the Servicing Agreement;
(i) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Borrower or Parent has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Borrower or Parent files with the SEC or any other governmental authority, or any securities exchange; and copies of any press releases or other statements made available by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope Borrower or Parent to the Warrant Holders and prepared by public concerning material changes to or developments in the Company and audited by ▇▇▇▇▇▇▇business of Borrower or Parent;
(j) promptly after the sending or filing thereof, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter any annual report to be prepared filed in connection with each audit, Plan or any employee benefit plan or similar employee benefit arrangement maintained or contributed to by Parent or Borrower that is not subject to the laws of the United States or is mandated by a government other than the United States for employees of Parent or Borrower; and
(Ck) a written report such other reports and information (which financial or otherwise) as Agent may include a SEC Report that contains the same information) providing explanations of any material variances request from the previous Fiscal Year and any material variances time to time in connection with any Collateral or Borrower’s or Servicer’s financial condition or business. Notwithstanding the Projections covering foregoing, the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant requirement to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available deliver financial statements and other information for the Company set forth in clauses (a), (b) and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicablei) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, 9.1.3 may be satisfied with respect to Parent by furnishing (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the applicable financial statements or related internal control systemsof Parent, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reportsthe Parent’s Form 10-K or 10-Q, acquisition analyses for material acquisitionsor (C) such other instruments, presentations to lendersdocuments or agreements filed with the SEC, financial institutions or potential investorsas applicable, consultants’ reports relating to filed with the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylawsSEC, or by delivering notice to Agent (which notice may be sent via automated email through Parent’s website) that such financial statements have been filed with the Company or any of its Subsidiaries to any SEC, in each case, within the time periods specified in such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementparagraphs.
Appears in 1 contract
Financial and Other Information. The Company will keepProvide Lender, and will cause Guarantor and Manager to provide to Lender, at its Subsidiaries to keepaddress set forth in Section 8.7 and at GMAC Commercial Mortgage Corporation, proper books 8333 Douglas Avenue, Suite 1460, Dallas, Texas 75225, the following ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ information on a continuing basis during the term of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLoan:
(ia) As soon as practicable and in any event within thirty Within one hundred twenty (30120) days after the end of each monthfiscal year of the Guarantor, consolidated financial statements for the Guarantor and its subsidiaries, including the month of MarchManager, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month Borrower and the year-to-date period, and an unaudited consolidated balance sheet of Facility (if different from the Company as of the end of such monthBorrower), prepared in accordance with GAAP (except for normal adjustments generally accepted accounting principles consistently applied, audited by a nationally recognized accounting firm or independent certified public accounting firm acceptable to the Lender, which statements shall include a balance sheet and accruals a statement of income and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures expenses for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant then ended. In lieu of its obligations hereunder, Guarantor may submit to Section 10(a)(iv)Lender, and (iii) upon its filing thereof, a copy of its Form 10 K as filed with the monthly Credit Review Alert Report;United States Securities and Exchange Commission.
(iib) Within forty-five (45) days after the end of each Fiscal Quarter including fiscal quarter of the fourth Facility (4th) Fiscal Quarterif different from Borrower), (A) unaudited consolidated interim financial statements of incomethe Facility, retained earnings certified as true and cash flows correct in all material respects by a financial officer of the Company for such quarter and for the period from the beginning of the then current Fiscal Year Borrower, subject to the customary year end of such Fiscal Quarteradjustments, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments generally accepted accounting principles consistently applied and accruals shall include a balance sheet, statement of income and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures expenses for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;quarter then ended.
(iiic) Within ninety forty-five (9045) days after the end of each Fiscal Yearfiscal quarter of Borrower, (A) audited consolidated unaudited interim financial statements of incomeBorrower, retained earnings certified as true and cash flows correct in all material respects by a financial officer of Borrower, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently and shall include a balance sheet and statement of income and expenses for the quarter then ended.
(d) Within forty-five (45) days after the end of each fiscal quarter of Guarantor, unaudited interim financial statements of Guarantor, certified as true and correct in all material respects by a financial officer of Guarantor, subject to customary year end adjustments, which statements shall be prepared in accordance with general accounting principles consistently applied and shall include a balance sheet and a statement of income and expenses for the quarter then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender a copy of its Form 10 Q as filed by Guarantor with the United States Securities and Exchange Commission.
(e) Within forty-five (45) days after the end of each quarter of Manager, unaudited interim financial statements of Manager, certified as true and correct in all material respects by a financial officer of Manager, subject to customary year end adjustments, which statements shall be prepared in accordance with generally accepted accounting principles consistently applied and shall include a balance sheet and a statement of income and expenses for the quarter then ended.
(f) Within forty-five (45) days after the end of each fiscal quarter of Borrower, a statement of the Company number of unit days available and the actual residents days incurred for such yearquarter, and consolidated balance sheets together with quarterly census information of the Company Facility as of the end of such yearquarter in sufficient detail to show resident-mix (i.e., setting forth in each caseprivate, in comparative formMedicare, corresponding figures Medicaid, and VA) on a daily average basis for the period covered by the preceding annual audit and as of such year through the end of such quarter, certified by a financial officer of Manager or Borrower to be true and correct. Such statements of the preceding Fiscal YearFacility shall be accompanied by the Summary of Financial Statements and Census Data attached hereto as Exhibit "D".
(g) If requested by Lender, within thirty (30) days after the filing deadline, as may be extended from time to time, copies of the federal income tax returns of Borrower and Guarantor and all state and local tax returns of Borrower, together with all supporting documentation and required schedules.
(h) If and to the extent applicable, within ten (10) days after filing or receipt, all of which statements Medicaid and/or Medicare cost reports and balance sheets shall be in reasonable detail and satisfactory in scope any amendments thereto filed with respect to the Warrant Holders Facility and prepared by the Company all responses, audit reports or inquiries with respect to such cost reports.
(i) If and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holdersextent applicable, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardswithin ten (10) days after receipt, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other licensure and certification survey reports submitted by and statements of deficiencies (with plans of correction attached thereto).
(j) If and to the Company’s accountants; extent applicable, within ten (10) days after receipt, a copy of the "Medicaid Rate Calculation Worksheet" (or the equivalent thereof) from the applicable agency.
(k) If and to the Company agrees extent applicable, within ten (10) days of receipt, a statement of the number of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, "default rate" shall have the meaning ascribed to it in that they shall request such a comment certain applicable Medicare rate notification letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification review or survey of the Chief Financial Officer Facility.
(l) Within three (3) days of receipt, any and all notices (regardless of form) from any and all federal or state agencies, including any licensing and/or certifying agencies that the Facility license and/or the participation in Medicare, Medicaid or any other federal or state health care program, as applicable, of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company Facility or any of its Subsidiaries owners, officers, directors, agents or managing employees is being downgraded to a substandard category, revoked, suspended, or subjected to federal or state health care program exclusion, civil monetary penalty, criminal penalty, or false claims recovery, or that any such action is pending, threatened or being considered.
(m) If requested by its accountants in connection with each annualLender, interim evidence of payment by Borrower or special audit or review Manager of any type applicable provider bed taxes or similar taxes, which Borrower or Manager agrees to pay.
(n) Within forty-five (45) days after the end of each of Borrower's fiscal quarter, and more frequently, if requested by Lender, an aged accounts payable report and an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of patient-mix (i.e., private, Medicare, Medicaid, and V.A.) both by the account age classifications of 30 days, 60 days, 90 days, 120 days and over 120 days.
(o) Any deficiency (identified above) shall be corrected by the date required by the licensure and certification agency, if such deficiency could adversely affect either (a) the right to continue participation in Medicare and Medicaid for existing residents or (b) the right to admit new Medicare and Medicaid residents, or (c) the right to continue operating the Facility as an independent living facility.
(p) If and to the extent applicable, Lender reserves the right to require that the annual financial statements of Borrower be audited and prepared by a nationally recognized accounting firm or independent certified public accountant acceptable to Lender, at their respective sole cost and expense, if (i) an Event of Default exists, (ii) if required by internal policy or by any investor in any securities backed in whole or in part by the Loan or any rating agency rating such securities, (iii) if Lender has reasonable grounds to believe that the unaudited financial statements do not accurately represent the financial condition of Borrower, Guarantor or Manager as the case may be, or (iv) the financial results of the Borrower and/or Manager (as the case may be) are no longer consolidated into Guarantor's audited financial statements.
(q) Lender further reserves the right to require such other financial information of Borrower, Guarantor, Manager and/or the Facility, in such form and at such other times (including monthly or more frequently) as Lender shall reasonably deem necessary, and Borrower agrees promptly to provide or to cause to be provided, such information to Lender. All financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management must be in the form and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From detail as Lender may from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may time reasonably request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders equity for such Fiscal Year, on consolidated and consolidating bases for Parent and its Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Parent and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(ivnormal year end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (b), and (iiic) above, or more frequently if requested by Agent while a copy Default or Event of Default exists, a Compliance Certificate executed by the monthly Credit Review Alert Reportchief financial officer of Parent;
(iie) Within forty-five concurrently with delivery of financial statements under clause (45a) days after the end above, copies of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Parent by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiif) Within ninety (90) not later than 30 days after prior to the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Parent’s consolidated balance sheets sheets, results of the Company as of the end of such yearoperations, setting forth in each casecash flow, in comparative form, corresponding figures Colonial Availability and ACM-TCM Availability for the period covered by the preceding annual audit and as of the end of the preceding next Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared month by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Yearmonth;
(ivg) As soon as practicable and in any event before November 30 at Agent’s request, a listing of each yearBorrower’s trade payables, specifying the trade creditor and balance due, and a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Companydetailed trade payable aging, all in the same format as the financial statements provided pursuant form satisfactory to Section 10(a)(i) and Section 10(a)(ii)Agent;
(vh) If promptly after the Company shall otherwise prepare sending or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basisfiling thereof, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review copies of any type of the proxy statements, financial statements or related internal control systemsreports that Parent has made generally available to its shareholders; copies of any regular, including periodic and special reports or registration statements or prospectuses that Parent files with the Securities and Exchange Commission or any comment letters (other Governmental Authority, or drafts thereof) delivered to management any securities exchange; and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions copies of any press releases or potential investors, consultants’ reports relating other statements made available by Parent to the Company and/or public concerning material changes to or developments in the business of Parent and its Subsidiaries;
(viii) Promptlypromptly after the sending or filing thereof, with copies of all amendmentsany annual report to be filed in connection with each Plan;
(j) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or Parent’s, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of Subsidiaries’ or in connection with, any Purchaser Document other Obligor’s financial condition or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Eventbusiness; and
(ixk) From on each anniversary date hereof or on such other date as reasonably required by Agent, from time to time, such additional information regarding a written certification to Agent and the business, properties, financial position, results of operations, or prospects Lenders that the form of the Company or any of its subsidiaries as Vehicle Contracts comply with the Warrant Holder (or Initial Holder) may request; provided that the Company Vehicle Contract Compliance Requirements, which certification shall not be required in form and content satisfactory to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementAgent.
Appears in 1 contract
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books maintain a system of record and account accounts in accordance with GAAP consistently applied throughout the periods covered in which sound accounting principles and procedures, keep full and true entries complete financial records and, prior to the consummation of a Qualified Public Offering, will be made of all dealings or transactions relating furnish to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesInvestors the following reports:
(i) As soon as practicable and in any event within thirty one hundred twenty (30120) days after the end of each monthfiscal year, including a copy of the month consolidated balance sheet of Marchthe Company as of the end of such year, June, September and December (A) unaudited together with consolidated statements of income, retained earnings cash flow and cash flows stockholders' equity of the Company for such month year, audited by and accompanied by the report of independent public accountants of nationally recognized standing, prepared in accordance with GAAP; in addition, the Company will provide such financial statements in comparative form with the corresponding periods of the prior year and budgeted figures for the current year;
(ii) within forty-to-date periodfive (45) days after the end of each fiscal quarter, and an unaudited consolidated balance sheet of the Company as of the end of such monthquarter and unaudited consolidated statements of income, cash flow and stockholders' equity for the Company for such quarter and for the year to date, prepared in accordance with GAAP (except for normal adjustments footnotes) and accruals and practices consistently applied; in addition, the lack of footnotes and other presentation items) consistent with past practice, (B) Company will provide such financial statements in comparative form, form with the corresponding periods of the prior year and budgeted figures for the actual results for current year; PROVIDED, that from and after such time as the corresponding month and year-to-date periods Company in the immediately preceding fiscal year and amounts projected for such month pursuant ordinary course prepares monthly financial statements, the Company shall furnish to Section 10(a)(iv)the Investors, and within thirty (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (4530) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quartermonth, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and an unaudited consolidated balance sheets sheet of the Company as of the end of such Fiscal Quartermonth and unaudited consolidated statements of income, all of which statements cash flow and balance sheets shall be in reasonable detailstockholders' equity for the Company for such month and for the year to date, prepared in accordance with GAAP (except for normal adjustments footnotes) and accruals and practices consistently applied; in addition, the lack of footnotes and other presentation items) consistent Company will provide such financial statements in comparative form with past practice, and certified as accurate by the Chief Financial Officer corresponding periods of the Company, prior year and (B) in comparative form, budgeted figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quartercurrent year;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted promptly following receipt by the Company’s accountants; , each audit response letter, accountant's management letter and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a other written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its independent public accountants in connection with each annual, an annual or interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects books of the Company or any of its subsidiaries as Subsidiaries;
(iv) promptly upon sending, making available or filing the Warrant Holder (or Initial Holder) may request; provided same, all press releases, reports and financial statements that the Company sends or makes available to its stockholders or directors or files with the Securities and Exchange Commission; and
(v) such other financial information as the holders of at least a majority of the shares of Preferred Stock may reasonably request, it being agreed that at least thirty (30) days prior to the beginning of each fiscal year, beginning January 1, 2000, the Company shall not prepare and submit to the Board of Directors an annual plan for such year which shall include, without limitation, an operating plan, a long-term strategic plan, a capital expenditure plan and policy, plans for incurrences of indebtedness for borrowed money and projections regarding other sources of funds, monthly projected capital and operating expense budgets, cash flow statements, profit and loss statements and balance sheet projections, itemized in such detail as the Board of Directors may request. A copy of such annual plan shall be required sent to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving Investors upon its approval by the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementBoard of Directors.
Appears in 1 contract
Sources: Stockholders' Agreement (Digitalconvergence Com Inc)
Financial and Other Information. The Company will keep, Provide Lender with the following financial statements and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesinformation on a continuing basis:
(ia) As soon as practicable Within one hundred and in twenty (120) days after the end of the applicable fiscal year for such entity, financial statements of the Borrower, which shall be audited by accounting firms or independent certified public accounting firms acceptable to the Lender (and Lender agrees that if such statements are prepared by any event of the "Big Six" accounting firms, such firm shall be accepted), which statements shall include a balance sheet and a statement of income and expenses for the year then ended, and a copy of the 10-K Report of the Guarantor filed with the United States Securities and Exchange Commission.
(b) Following completion of construction, within thirty fifty (3050) days after the end of each monthcalendar quarter, including the month of March, June, September and December (A) unaudited consolidated financial statements of income, retained earnings and cash flows the Borrower indicating the results of operations of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such monthImprovements, prepared in accordance with GAAP (except for normal adjustments GAAP, which such statements shall include a balance sheet and accruals statement of income and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures expenses for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)quarter, together with a written report (or such SEC Report utilization and statistical data which shall contain are standard and customary in the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Yearhospital industry as may be reasonably required by Lender, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance certified to be true and correct by Borrower's executive director or chief financial officer, and copies of the 10-Q Report of the Guarantor filed with GAAP the United States Securities and generally accepted auditing standardsExchange Commission.
(c) Upon completion of construction, if requested by Lender within twenty (B20) days of filing or receipt, all Medicaid and Medicare cost reports and any amendments thereto filed with respect to the Improvements, and all responses, audit reports, or inquiries with respect to such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as cost reports.
(d) Upon completion of construction, within twenty (20) days of receipt, copies of all other licensure, certification and accreditation survey reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of deficiencies (with plans of correction attached thereto).
(e) Within three (3) days of receipt, any and all notices (regardless of form) from any and all licensing and/or certifying and/or accreditation agencies that the Improvement's license and/or accreditation and/or Medicare and/or Medicaid certification is being downgraded to a substandard category, revoked, or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke, or suspend the Improvement's license, accreditation, or certification. The Lender reserves the right to require such other financial information (including tax returns, detailed cash flows flow information and contingent liability information) of Borrower, Guarantor and any affiliate of any of the Company foregoing, all at such times as Lender shall reasonably deem necessary, and its consolidated Subsidiaries on a consolidated basis, as at the end of Borrower agrees promptly to provide such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, information to Lender. All financial statements must be in the same format form and detail as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company Lender shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may time request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Loan Agreement (Medcath Inc)
Financial and Other Information. The Company Streamline will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished deliver to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesInvestor the following:
(ia) As as soon as practicable available and in any event within thirty 45 days after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, an unaudited balance sheet of the Company as at the end of such period and the related unaudited statements of operations, stockholders' equity and changes in cash flow of the Company for such period and (30in 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 figures for the corresponding periods of the previous fiscal year;
(b) as soon as available and in any event within 90 days after the end of each fiscal year of the Company, an audited balance sheet of the Company as at the end of such fiscal year and the related audited statement of operations, stockholder's equity and changes in cash flow of the Company for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by the report thereon of a firm of independent public accountants of recognized national standing selected by the Company, which report (i) shall state that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and (ii) shall include the opinion of such accountants that such financial statements have been prepared in accordance with generally accepted accounting principles consistent with those applied in prior fiscal periods, except as otherwise specified in such opinion;
(c) as soon as available and in any event within 30 days after the end of each month, including an unaudited balance sheet of the Company as at the end of such month of March, June, September and December (A) the related unaudited consolidated statements of incomeoperations, retained earnings stockholders' equity and changes in cash flows of the Company for such month and for the year-to-date period, and an unaudited consolidated balance sheet of the Company as of current fiscal year to the end of such month, setting forth in comparative form the Company's projected financial statements for the corresponding periods for the current fiscal year;
(d) as soon as available, but in any event within 30 days after commencement of each new fiscal year, a business plan and projected financial statements for such fiscal year; and
(e) with reasonable promptness, such other notices, Information and data with respect to the Company as the Company delivers to the holders of Common Stock, and such other information and data as the Investors may from time to time reasonably request. Notwithstanding the foregoing, the Company's obligations to deliver the information specified in paragraphs (c) and (d) shall terminate once the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. The foregoing financial statements shall be prepared on a consolidated basis if the Company then has any subsidiaries. The financial statements delivered pursuant to paragraphs (a) and (c) shall be accompanied by a certificate of the chief financial officer of the Company stating that such statements have been prepared in accordance with GAAP generally accepted accounting principles consistently applied (except for normal adjustments as noted) and accruals fairly present the financial condition and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows operations of the Company for such quarter at the date thereof and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementthereby.
Appears in 1 contract
Financial and Other Information. The Company will keepKeep adequate records and books of account with respect to its business activities, and will cause its Subsidiaries furnish to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders equity on a consolidated and consolidating basis for Borrowers and their Subsidiaries, which consolidated statements shall be audited on standards satisfactory to Lender by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Lender in its Permitted Discretion, and shall set forth comparative corresponding figures for the preceding Fiscal Year;
(30b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating basis for Borrowers and their Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by an authorized officer of Borrowers as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month, including (but within 45 days after the last month of Marcheach Fiscal Quarter and 60 days after the last month in a Fiscal Year), June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth (or Fiscal Quarter, prepared in accordance with GAAP (except for normal adjustments and accruals as applicable) and the lack related statements of footnotes income and other presentation itemscash flow for such month (or Fiscal Quarter, as applicable) consistent with past practiceand for the portion of the Fiscal Year then elapsed, (B) on consolidated and consolidating basis for Borrowers and their Subsidiaries, setting forth in comparative form, form corresponding figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations certified by an authorized officer of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company Borrowers as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(Bd) such accountants’ comment letter on concurrently with delivery of quarterly financial statements under clauses (a) and (b) above, or more frequently if requested by Lender while an Event of Default exists, a Compliance Certificate executed by the Company’s internal an authorized officer of Borrowers;
(e) concurrently with delivery of financial or accounting systems or controls which shall be issued as well as statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the such financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesstatements;
(viif) Promptlyconcurrently with delivery of Borrowers’ Borrowing Base Reports delivered pursuant to Section 8.1 above, with copies a listing of all amendmentsBorrowers’ trade payables, consent letters, waivers or modifications tospecifying the trade creditor and balance due, and any material notices or reports provided by any Person a detailed trade payable aging, all in form reasonably satisfactory to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such PersonLender;
(viiig) Promptlynot later than 30 days after the beginning of each Fiscal Year, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence projections of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionBorrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal Year, covering a time period acceptable to Lender month by month; and
(h) such other reports and information (financial or prospects of the Company otherwise) as Lender may request from time to time in connection with any Collateral or any of its subsidiaries as the Warrant Holder (Borrowers’, Subsidiaries’, or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (other Obligor’s financial condition or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementbusiness.
Appears in 1 contract
Sources: Loan and Security Agreement (Wireless Telecom Group Inc)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries deliver to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and Investor the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesfollowing:
(ia) As as soon as practicable available and in any event within thirty 45 days after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, an unaudited balance sheet of the Company as at the end of such period and the related unaudited statements of operations, stockholders' equity and changes in cash flow of the Company for such period and (30in 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 figures for the corresponding periods of the previous fiscal year;
(b) as soon as available and in any event within 90 days after the end of each fiscal year of the Company, an audited balance sheet of the Company as at the end of such fiscal year and the related audited statement of operations, stockholder's equity and changes in cash flow of the Company for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by the report thereon of a firm of independent public accountants of recognized national standing selected by the Company, which report (i) shall state that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and (ii) shall include the opinion of such accountants that such financial statements have been prepared in accordance with generally accepted accounting principles consistent with those applied in prior fiscal periods, except as otherwise specified in such opinion;
(c) as soon as available and in any event within 30 days after the end of each month, including an unaudited balance sheet of the Company as at the end of such month of March, June, September and December (A) the related unaudited consolidated statements of incomeoperations, retained earnings stockholders' equity and changes in cash flows of the Company for such month and for the year-to-date period, and an unaudited consolidated balance sheet of the Company as of current fiscal year to the end of such month, setting forth in comparative form the Company's projected financial statements for the corresponding periods for the current fiscal year;
(d) as soon as available, but in any event within 30 days after commencement of each new fiscal year, a business plan and projected financial statements for such fiscal year; and
(e) with reasonable promptness, such other notices, information and data with respect to the Company as the Company delivers to the holders of Common Stock, and such other information and data as the Investor may from time to time reasonably request. Notwithstanding the foregoing, the Company's obligations to deliver the information specified in paragraphs (c) and (d) shall terminate once the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. The foregoing financial statements shall be prepared on a consolidated basis if the Company then has any subsidiaries. The financial statements delivered pursuant to paragraphs (a) and (c) shall be accompanied by a certificate of the chief financial officer of the Company stating that such statements have been prepared in accordance with GAAP generally accepted accounting principles consistently applied (except for normal adjustments as noted) and accruals fairly present the financial condition and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows operations of the Company for such quarter at the date thereof and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementthereby.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty (30) 120 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal QuarterYear, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and shareholders equity for such Fiscal Year, on consolidated and consolidating bases for Parent and Subsidiaries, which consolidated statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP audited and certified (except for normal adjustments without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and accruals and the lack of footnotes and other presentation items) consistent with past practiceacceptable to Agent, and certified as accurate by the Chief Financial Officer of the Company, and (B) shall set forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant other information acceptable to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal QuarterAgent;
(iiib) Within ninety (90i) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Year), (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated unaudited balance sheets of the Company as of the end of such yearmonth and the related statements of income, cash flow and shareholders equity for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and Subsidiaries, setting forth in each case, in comparative form, form corresponding figures for the period covered preceding Fiscal Year and certified by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting the financial position and results of operations for such month and period, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; subject to normal year-end adjustments and the Company agrees that they shall request absence of footnotes and (ii) as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, unaudited balance sheets as of the end of such a comment letter to be prepared quarter and the related statements of income, cash flow and shareholders equity for such quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and Subsidiaries, setting forth in connection with each audit, (C) a written report (which may include a SEC Report that contains comparative form corresponding figures for the same information) providing explanations of any material variances from the previous preceding Fiscal Year and any material variances in connection with certified by the Projections covering the previous Fiscal Year, and (D) the certification chief financial officer of the Chief Financial Officer of the Company that all such Financial Statements present fairly Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position, position and results of operations for such quarter and statements period, subject to normal year-end adjustments and the absence of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Yearfootnote;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Alliance Entertainment Holding Corp)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event no later than May 31, 2019 for the Fiscal Year ending December 31, 2018 and within 90 days after the close of each Fiscal Year thereafter, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders equity for such Fiscal Year, on consolidated and consolidating bases for Obligors and Subsidiaries, which consolidated statements shall be audited and certified (without qualification (or similar notation) as to scope or going concern (it being understood that any qualification with respect to the stated maturity date of the Revolver Loans is permissible)) by a firm of independent certified public accountants of recognized standing selected by Obligors and reasonably acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within thirty (30) 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year-end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iic) Within forty-five concurrently with delivery of financial statements under clauses (45a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Borrower Agent;
(d) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Obligors by their accountants in connection with such financial statements;
(e) not later than 30 days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end commencement of each Fiscal Year, (A) audited projections of Obligors’ consolidated statements balance sheets, results of incomeoperations, retained earnings cash flow and cash flows of the Company Availability for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all month by month , and for the next three (3) Fiscal Years, year by year;
(f) at Agent’s request, a listing of which statements each Obligor’s trade payables, specifying the trade creditor and balance sheets due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(g) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by an Obligor to the public concerning material changes to or developments in the business of such Obligor;
(h) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(i) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business;
(j) as soon as available, and in any event within 120 days after the close of each Fiscal Year, financial statements for each Guarantor, in form and substance reasonably satisfactory to Agent; and
(k) promptly following any request therefor, provide information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation. Information required to be delivered pursuant to Section 10.1.2 may be delivered electronically and if so delivered, shall be in reasonable detail and satisfactory in scope deemed to have delivered on the Warrant Holders and prepared by date (i) on which Borrower posts such information or provides a link thereto on Borrower’s website on the Company and audited by internet at ▇▇▇▇://▇▇▇, ▇▇▇▇▇▇▇ & .▇▇▇▇▇▇▇▇.▇▇▇ or at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and promptly notifies Agent and Lenders of such posting or (ii) on which such information is posted on the Borrower’s behalf on any Internet or intranet website, CPAsif any, to which the Lenders and the Agent have been granted access and have been promptly notified of such posting (whether a commercial, third party website or another respected firm of independent certified public accountants selected whether sponsored by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(iiAgent);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (ArcLight Clean Transition Corp.)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings Provide or transactions relating to their business and affairs, and the Company shall cause to be furnished provided to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender, at its address set forth in Section 8.7, the following financial statements and information on a continuing basis during the term of the Loan:
(ia) As soon as practicable and in any event within thirty Within ninety (3090) days after the end of each monthfiscal year of the Facility, including Borrower and Lessee (if different from the month of MarchFacility), June, September and December (A) unaudited consolidated financial statements of incomesuch entities, retained earnings and cash flows prepared by an officer of the Company for such month and the year-to-date periodapplicable entity in accordance with GAAP, and an unaudited consolidated balance sheet of the Company as of the end of certified by such monthofficer, which statements shall be prepared in accordance with GAAP GAAP, and shall include a balance sheet and a statement of income and expenses for the year then ended, and shall be certified as true and correct by a financial officer of Borrower or Manager (except for normal adjustments and accruals and as applicable).
(b) Within one hundred twenty (120) days after the lack end of footnotes and other presentation items) consistent with past practiceeach calendar year, (Bi) unaudited financial statements of Guarantor, which shall be in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv)form as Lender shall reasonably approve, and shall be certified as true and correct by Guarantor and (iiiii) a copy of the monthly Credit Review Alert Report;Annual Financial Report (as defined in the Management Agreement) received by Borrower or Lessee from Manager; provided, however, it shall not be a default by Borrower hereunder if Borrower fails to deliver to Lender the Annual Financial Report due to Manager’s failure to deliver the same as required under the Management Agreement.
(iic) Within forty-five (45) days after the end of each Fiscal Quarter including quarter following such time as the fourth (4th) Fiscal QuarterFacility opens for business, (A) unaudited consolidated interim financial statements of income, retained earnings and cash flows the operations of the Company for such quarter Facility, certified as true and for the period from the beginning correct by a financial officer of the then current Fiscal Year to the end of such Fiscal QuarterBorrower, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterLessee, all of which statements and balance sheets shall be in reasonable detailor Manager, prepared in accordance with GAAP (except for normal adjustments GAAP, which statements shall include a balance sheet and accruals statement of income and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures expenses for the actual results month then ended and for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant fiscal year to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;date.
(iiid) Within ninety forty-five (9045) days after the end of each Fiscal Yearquarter following such time as the Facility opens for business, (A) audited consolidated statements of income, retained earnings and cash flows a statement of the Company number of unit days available and the actual unit days incurred for such yearquarter, and consolidated balance sheets as well as a statement of the Company number of resident days available and the actual resident days incurred for such quarter, together with quarterly census information of the Facility as of the end of such yearquarter in sufficient detail to show resident -mix (i.e., setting forth in each caseprivate, in comparative formMedicare, corresponding figures Medicaid, and V.A.) on a daily average basis for such year through the period covered end of such quarter, certified by the preceding annual chief financial officer of Borrower, Lessee, or Manager to be true and correct.
(e) If requested by Lender, within thirty (30) days after the filing deadline, as may be extended from time to time, copies of all federal, state and local tax returns, as applicable, of Borrower, Lessee and Guarantor, together with all supporting documentation and required schedules.
(f) If and to the extent hereafter applicable, within ten (10) days after filing or receipt, all Medicaid cost reports and any amendments thereto filed with respect to the Facility and all responses, audit reports, or other inquiries with respect to such cost reports.
(g) If and as to the extent hereafter applicable, within ten (10) days after receipt, copies of all licensure and certification survey reports and statements of deficiencies (with plans of correction attached thereto).
(h) If and to the extent hereafter applicable, within ten (10) days after receipt, a copy of the “Medicaid Rate Calculation Worksheet” (or the equivalent thereof) from the applicable agency.
(i) If and to the extent hereafter applicable, within ten (10) days of receipt, a statement of the number of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, “default rate” shall have the meaning ascribed to it in that certain applicable Medicare rate notification letter prepared in connection with any review or survey of the Facility.
(j) Within three (3) days after receipt, any and all notices (regardless of form) from any and all licensing and/or certifying agencies, including but not limited to, that the Facility’s license is being downgraded to a substandard category, revoked or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke or suspend the Facility’s license or certification.
(k) If requested by Lender, evidence of payment by Borrower, Lessee, or Manager of any applicable provider bed taxes or similar taxes, which taxes Borrower, Lessee, or Manager agrees to pay.
(l) Within one hundred twenty (120) days after the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the CompanyFacility’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yearfiscal year, and more frequently, if reasonably requested by Lender (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less more often than 5 Business Days prior twice during any calendar year), an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of resident-mix, if applicable (i.e., private, Medicare, Medicaid and V.A.), by the occurrence account age classifications of any Put Event; and
30 days, 60 days, 90 days, 120 days, and over 120 days. Lender reserves the right to require that the annual and/or quarterly financial statements of Borrower, Guarantor and Lessee be audited and prepared by a nationally recognized accounting firm or independent certified public accounting firm acceptable to Lender, at their respective sole cost and expense, if (ixi) From an Event of Default exists, or (ii) if Lender has reasonable grounds to believe that the unaudited financial statements do not accurately represent the financial condition of Borrower, Guarantor or Lessee as the case may be. Lender further reserves the right to require such other financial information of Borrower, Guarantor, Lessee, Manager, and/or the Facility, at such other times (including monthly or more frequently) as it shall deem necessary. All financial statements must be in the form and detail as Lender shall from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may time request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keepBorrowers and Weeks Corporation shall ------------------------------- furnish to Banks' Agent, each Bank and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout Swing Lender the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesfollowing financial information:
(ia) As soon as practicable and in any event within thirty (30) days after the end of each monthQuarterly, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within not later than forty-five (45) days after the end of each Fiscal Quarter of the first three (3) fiscal quarters of each fiscal year of Weeks Corporation, unaudited financial statements of Weeks Corporation, including the fourth accounts of Weeks Corporation and all Consolidated Entities reported on a consolidated basis in accordance with GAAP (4th) Fiscal Quartersubject to customary adjustments and the absence of notes thereto), (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarterquarter, including a balance sheet and detailed statement of profit and loss, in the form included by Weeks Corporation in its Quarterly Report on Form 10-Q filed in respect of such quarterly period with the SEC or otherwise in form reasonably acceptable to Banks' Agent and the Required Banks, all of which certified by Weeks Corporation's chief financial officer. Weeks Corporation's chief financial officer shall certify with respect to all such financial statements and balance sheets shall be in reasonable detail, prepared that the financial statements submitted (i) are in accordance with GAAP (except for normal adjustments and accruals Weeks Corporation's and the lack Consolidated Entities' or Non- Consolidated Subsidiaries' books and records; (ii) present fairly in all material respects the financial position and results of footnotes operations as of and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
specified; (iii) Within ninety set forth all material claims and liabilities, contingent or otherwise, required by GAAP to be disclosed therein; and (90iv) fully disclose the existence of any Default hereunder, including the nature and period of existence thereof.
(b) Quarterly, not later than forty-five (45) days after the end of each Fiscal Yearfiscal quarter of Weeks Corporation, (A) audited consolidated statements a certificate of incomeWeeks Corporation's chief financial officer, retained earnings in the form of Exhibit H, which is attached hereto and cash flows of --------- incorporated herein by reference, certifying compliance by Borrowers and Weeks Corporation with this Agreement, including the Company for such year, and consolidated balance sheets of the Company financial covenants set forth in Article XII as of the end of such yearquarter and containing a computation evidencing compliance with such financial covenants as of such quarter and in accordance with GAAP. Said certificates shall also include a statement by such officer as to the outstanding principal balance of all Loans and the identity of the Borrower for whose benefit each such Loan was intended.
(c) Annually, setting forth not later than one hundred twenty (120) days after the end of Weeks Corporation's fiscal year end, financial statements of Weeks Corporation, including the accounts of Weeks Corporation and all Consolidated Entities reported on a consolidated basis in each caseaccordance with GAAP, in comparative form, corresponding figures as of and for the period covered ending at such fiscal year end, including a balance sheet and detailed statement of profit and loss, in the form included by Weeks Corporation in its Annual Report on Form 10-K filed in respect of such annual period with the SEC or otherwise in form reasonably acceptable to Banks' Agent and the Required Banks, audited by an independent practicing certified public accountant of recognized national standing or otherwise reasonably acceptable to Banks' Agent and the Required Banks, together with an auditor's opinion of such accountant without material qualification.
(d) On the due date therefor (taking into account any extensions granted by the preceding annual audit SEC), or upon the filing thereof with the SEC, if sooner, all notices and reports filed by Weeks Corporation or any Consolidated Entity or Non- Consolidated Subsidiary with the SEC.
(e) From time to time (but not more frequently than quarterly) at Banks' Agent's request, summary reports on the net operating income of Income Properties, rent rolls and property level reports supporting the calculation of Annualized NOI, in form and content reasonably satisfactory to Banks' Agent.
(f) Quarterly, not later than forty-five (45) days after the end of each fiscal quarter of each Non-Consolidated Subsidiary which is or becomes a Borrower under this Agreement, unaudited financial statements of each such Non- Consolidated Subsidiary, reported in accordance with GAAP (subject to customary adjustments and the absence of notes thereto), as of the end of such quarter, including a balance sheet and detailed statement of profit and loss, in form reasonably acceptable to Banks' Agent and the preceding Fiscal YearRequired Banks, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared each certified by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm chief financial officer of independent certified public accountants selected by such applicable Non-Consolidated Subsidiary. Such chief financial officer shall certify with respect to such financial statements that the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared financial statements submitted (i) are in accordance with GAAP such applicable Non-Consolidated Subsidiary's books and generally accepted auditing standards, records; (Bii) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP all material respects the financial position, position and results of operations as of and statements of cash flows of for the Company periods specified; and its consolidated Subsidiaries on a consolidated basis(iii) set forth all material claims and liabilities, as at the end of such Fiscal Year;contingent or otherwise, required by GAAP to be disclosed therein.
(ivg) As soon as practicable Such other or more frequent data, information, and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant reports with respect to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company Weeks Corporation or any of its Subsidiaries by its accountants in connection with each annualConsolidated Entity or Non-Consolidated Subsidiary as Banks' Agent, interim Banks or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From Swing Lender may reasonably request from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Credit Agreement (Weeks Corp)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries shall deliver to keep, proper books each of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, Banks and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesAdministrative Agent:
(ia) As as soon as practicable available and in any event within thirty (30) 60 days after the end of each monthof the first three quarterly periods of each fiscal year of the Company, including a copy of the month quarterly report filed by the Company with the SEC on Form 10-Q in respect of Marchsuch fiscal period, Juneor if the Company is not required to file such a report in respect of such quarterly period, September a condensed consolidated statement of operations of the Company and December the consolidated Subsidiaries for such period (Asetting forth in comparative form the corresponding figures for the corresponding period in the preceding fiscal year) unaudited and a condensed consolidated statements statement of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and Subsidiaries for the period from the beginning of the then current Fiscal Year respective fiscal year to the end of such Fiscal Quarterperiod, and unaudited the related consolidated balance sheets of the Company sheet as of at the end of such Fiscal Quarterperiod (setting forth in comparative form the corresponding figures as at the end of the preceding fiscal year), all accompanied by a certificate of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer a senior financial officer of the Company, which certificate shall state that said financial statements fairly present the consolidated financial condition and results of operations of the Company and the consolidated Subsidiaries in accordance with generally accepted accounting principles, consis tently applied, as at the end of, and for, such period (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant subject to Section 10(a)(ivnormal year-end audit adjustments), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iiib) Within ninety (90) as soon as available and in any event within 120 days after the end of each Fiscal Yearfiscal year of the Company, (A) audited a copy of the report filed by the Company with the SEC on Form 10-K in respect of such fiscal year, accompanied by the Company's annual report in respect of such fiscal year or, if the Company is not required to file such a report in respect of such fiscal year, consolidated statements of incomeoperations, retained earnings shareholders' equity and cash flows of the Company and the consoli dated Subsidiaries for such year, year and the relate▇ consolidated balance sheets of the Company sheet as of at the end of such year, setting forth in each case, case in comparative form, form the corresponding figures for the period covered preceding fiscal year, and accompanied by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm an opinion thereon of independent certified public accountants selected by of recognized national standing, which opinion shall state that said financial statements fairly present the consolidated financial condition and results of operations of the Company and reasonably satisfactory the consolidated Subsidiaries as at the end of, and for, such fiscal year, and a certificate of such accountants stating that, in making the examination necessary for their opinion, they obtained no knowl edge, except as specifically stated, of any Event of Default;
(c) as soon as available and in any event within 120 days after the end of each fiscal year of the Company, the annual statement of each Restricted Subsidiary for such fiscal year as filed with the insurance regulators supervising such Restricted Subsidiary, each such Statement to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP the statutory accounting principles required by law to be applied in the preparation thereof and generally accepted auditing standardsto be accompanied by an opinion of a senior financial officer of the Restricted Subsidiary to which such Statement relates stating that such Statement fairly presents the financial condition of such Restricted Subsidiary in accordance with such statutory accounting principles;
(d) promptly upon their becoming available, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all registration statements and regular periodic reports which the Company shall have filed with the SEC or any national securities exchange;
(e) promptly upon the mailing thereof to the shareholders of the Company generally, copies of all financial statements, reports and proxy statements so mailed;
(f) as soon as possible after, and in any event within ten days after the Company or any ERISA Affiliate knows or has reason to know that, any ERISA Event has occurred or exists that, alone or together with any other reports submitted by ERISA Events that have occurred, could reasonably be expected to result in liability of any of the Company’s accountants; Company and the Company agrees that they shall request such Subsidiaries in an aggregate amount exceeding $10,000,000 or requires payments exceeding $5,000,000 in any year, a comment letter to be prepared in connection with each audit, (C) statement of a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all setting forth details respecting such Financial Statements present fairly in accordance with GAAP ERISA Event and the financial positionaction, results of operations and statements of cash flows of if any, which the Company or its ERISA Affiliate proposes to take with respect thereto (and its consolidated Subsidiaries on a consolidated basis, as at copy of any report or notice required to be filed with or given to the end of PBGC by the Company or an ERISA Affiliate with respect to such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(iior condition);
(vg) If promptly after the Company shall otherwise prepare knows or have available financial statements and other information for the Company and its Subsidiaries on has reason to know that any Event of Default has occurred, a consolidated basisnotice of such Event of Default, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish describing the same to the Warrant Holders in addition to the financial statements reasonable detail and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions stating that such notice is a "Notice of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any Event of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventDefault"; and
(ixh) From from time to time, time such additional other information regarding the business, properties, affairs or financial position, results of operations, or prospects condition of the Company or any of its subsidiaries the Subsidiaries (including, without limitation, any Plan and any reports or other information required to be filed under ERISA) as any Bank or the Warrant Holder Administrative Agent may reasonably re quest. The Company will furnish to each Bank and the Administrative Agent, at the time it furnishes each report or set of financial statements pursuant to paragraph (a) or Initial Holder(b) may request; provided that above, a certificate of a senior financial officer of the Company shall not be required to deliver information the effect that no Event of Default has occurred and notices under this Section 10(a) is continuing (or, if the Warrant Holder (or Initial Holder) any Event of Default has occurred and is receiving continuing, describing the same information in reasonable detail), and notices as will furnish to each Bank, at the time it furnishes each set of statutory statements pursuant to paragraph (c) above, a Purchaser under certificate of a senior financial officer of the Note and Warrant Purchase AgreementCompany to the effect that no change has occurred in the statutory principles applied in the preparation of the statutory statements most recently furnished to the Banks in connection with this Agreement (or, if any change has occurred, describing the same in reasonable detail).
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Providian Corp)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries furnish the following reports to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesPurchaser:
(ia) As soon as practicable after the end of each fiscal year of the Company, beginning with the fiscal year ended December 31, 2010, and in any event within thirty (30) 120 days after thereafter, an audited consolidated balance sheet of the Company and its Subsidiaries as of the end of each monthsuch fiscal year, including the month of March, June, September and December (A) unaudited audited consolidated statements of income, retained earnings income and cash flows of the Company and its Subsidiaries for such year, prepared in accordance with GAAP, all in reasonable detail, certified by an independent public accountant selected by the Company and acceptable to Purchaser in its reasonable discretion.
(b) As soon as practicable after the end of each month and the year-to-date periodin any event within 30 days thereafter, and an unaudited a consolidated balance sheet of the Company and its Subsidiaries, if any, as of the end of such month, and consolidated statements of income and cash flows (including a statement of net income for such month) of the Company and its Subsidiaries, if any, for such month, prepared in accordance with GAAP (except for normal GAAP, subject to changes resulting from year-end audit adjustments and accruals the absence of notes, all in reasonable detail;
(c) No more than 30 days prior to the end of each fiscal year of the Company, a comprehensive operating budget forecasting the revenues, expenses, cash position, and net income of the lack of footnotes Company and other presentation items) consistent with past practiceits Subsidiaries, (B) in comparative formif any, figures for the actual results for the corresponding month and yearon a month-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv)month, and (iii) a copy of quarter-to-quarter, basis for the monthly Credit Review Alert Reportupcoming fiscal year;
(iid) Within forty-five (45) days As soon as practicable after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quartercalendar quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each yearwithin 15 days thereafter, a Budget compliance certificate in form and Projections for each month substance satisfactory to Purchaser certifying compliance with the membership covenant set forth in Section 10.14 below, or specifying the details of any failure of the next succeeding fiscal year Company to satisfy such membership covenant;
(including e) Promptly after the preparation thereof, true copies of all reports, statements, documents, plans, and other material communications furnished by or on behalf of the Company to its Board, to its shareholders, or to any Governmental Authority, including, but not limited to, the Commission; provided that Purchasers shall (and hereby do) agree to hold in confidence and trust all information so provided; and provided further that the Company reserves the right to exclude such individuals from access to any of such materials or portions thereof if (i) the Board of Directors believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege or confidential information or (ii) a statement majority of underlying assumptionsthe directors of the Company reasonably believes that such access would or could materially impair the due consideration by the Board of Directors of any specific matter (such materials or portions thereof, “Excluded Materials”). (f) for Notice, promptly after the CompanyCompany has Knowledge of, (i) the existence and status of any Litigation with respect to the Company which could, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or event of an unfavorable outcome, have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When availableMaterial Adverse Effect, (Aii) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants change in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices fact or reports provided by any Person to the Company circumstance represented or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or warranted by the Company or in any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operationsTransaction Documents, or prospects of (iii) a Default or Potential Default, specifying the nature thereof and what action the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required has taken, is taking, and/or proposes to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.take with respect thereto;
Appears in 1 contract
Sources: Note Purchase Agreement (Whiteglove House Call Health Inc)
Financial and Other Information. The Company Streamline will keep, and will cause its Subsidiaries deliver to keep, proper books of record and account in accordance with GAAP consistently applied throughout Purchaser the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesfollowing:
(ia) As as soon as practicable available and in any event within thirty 45 days after the end of the first, second and third quarterly accounting periods in each fiscal year of Streamline, an unaudited balance sheet of Streamline as at the end of such period and the related unaudited statements of operations, stockholders' equity and changes in cash flow of Streamline for such period and (30in 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 figures for the corresponding periods of the previous fiscal year;
(b) as soon as available and in any event within 90 days after the end of each fiscal year of Streamline, an audited balance sheet of Streamline as at the end of such fiscal year and the related audited statement of operations, stockholder's equity and changes in cash flow of Streamline for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by the report thereon of a firm of independent public-accountants of recognized national standing selected by Streamline, which report (i) shall state that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards and (ii) shall include the opinion of such accountants that such financial statements have been prepared in accordance with generally accepted accounting principles consistent with those applied in prior fiscal periods, except as otherwise specified in such opinion;
(c) as soon as available and in any event within 30 days after the end of each month, including an unaudited balance sheet of Streamline as at the end of such month of March, June, September and December (A) the related unaudited consolidated statements of incomeoperations, retained earnings stockholders' equity and changes in cash flows of the Company Streamline for such month and for the year-to-date period, and an unaudited consolidated balance sheet of the Company as of current fiscal year to the end of such month, setting forth in comparative form Streamline's projected financial statements for the corresponding periods for the current fiscal year;
(d) as soon as available, but in any event within 30 days after commencement of each new fiscal year, a business plan and projected financial statements for such fiscal year; and
(e) with reasonable promptness, such other notices, information and data with respect to Streamline as Streamline delivers to the holders of Common Stock, and such other information and data as Purchaser may from time to time reasonably request. Notwithstanding the foregoing, Streamline's obligations to deliver the information specified in paragraphs (c) and (d) shall terminate once Streamline becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. The foregoing financial statements shall be prepared on a consolidated basis if Streamline then has any Subsidiaries. The financial statements delivered pursuant to paragraphs (a) and (c) shall be accompanied by a certificate of the chief financial officer of Streamline stating that such statements have been prepared in accordance with GAAP generally accepted accounting principles consistently applied (except for normal adjustments as noted) and accruals fairly present the financial condition and results of operations of Streamline at the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter thereof and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementthereby.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Streamline Inc)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Obligors and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information reasonably acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter ending thereafter, unaudited balance sheets as of the end of such quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and, to the extent applicable, consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by a Senior Officer of Obligors as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the most recent Fiscal Month and the related statements of income and cash flow for such Fiscal Month and for the portion of the Fiscal Year then elapsed, on consolidated and, to the extent applicable, consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year, all of which statements Year and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared certified by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm chief financial officer of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be Borrower Agent as prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (Bb) such accountants’ comment letter on and (c) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the Company’s internal chief financial or accounting systems or controls which shall be issued as well as officer of Borrower Agent;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the such financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesstatements;
(viif) Promptlynot later than thirty (30) days after the last day of each Fiscal Year, with copies projections of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionBorrowers’ consolidated balance sheets, results of operations, cash flow and Availability for such Fiscal Year, on a Fiscal Month by Fiscal Month basis;
(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(h) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan, Canadian Pension Plan or Foreign Plan; and
(j) such other reports and information (financial or otherwise) as the Warrant Holder (Agent may request from time to time in connection with any Collateral or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (any Borrower’s, Subsidiary’s or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementother Obligor’s financial condition or business.
Appears in 1 contract
Financial and Other Information. The Company will keepBorrower shall deliver to Lender in ------------------------------- form and detail satisfactory to Lender, and will cause its Subsidiaries to keep, proper books in such number of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharescopies as Lender may request:
(i) As soon as practicable and in any event within thirty (30) available but no later than 120 days after the end close of each of its fiscal years, a complete copy of Borrower's financial statements, which shall include Borrower's balance sheet as of the close of such year, and Borrower's statements of operations, stockholders equity and cash flows for such year prepared in accordance with GAAP, audited by an independent public accountant selected by Borrower and satisfactory to Lender. The statements shall be accompanied by a certificate of Borrower that no event has occurred and is continuing which is, or with the lapse of time or notice or both would be, an Event of Default.
(ii) As soon as available but no later than 45 days after the close of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated Borrower's balance sheet of the Company as of the end close of such month, and Borrower's statements of operations, stockholders equity and cash flows, all as prepared by Borrower for its own use and certified by a duly authorized officer of Borrower as being complete and correct and fairly presenting Borrower's financial condition and results of operations in accordance with GAAP (except for normal adjustments accrual accounting principles and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated practices consistently applied. The statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detailaccompanied by a certificate of Borrower that no event has occurred and is continuing which is, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;lapse of time or notice or both would be, an Event of Default.
(iii) Within ninety Promptly, such other statements, lists of property and accounts, budgets, forecasts, reports or other information concerning Borrower's business activities and financial condition as Lender may reasonably request from time to time.
(90iv) days after If any Subsidiary exists, the end of each Fiscal YearBorrower shall deliver to Lender all financial statements, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries operations required by this Article 7.2 on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Credit Agreement (Paymap Inc)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities sufficient to allow financial statements to be prepared in accordance with GAAP consistently applied throughout the periods covered in which full GAAP; and true entries will be made of all dealings or transactions relating furnish to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesAgent:
(ia) As as soon as practicable available, and in any event within thirty (30) 90 days after the end close of each month, including the month of March, June, September and December Fiscal Year (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) or within 105 days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current any Fiscal Year with respect to which a Form 12b-25 has been duly filed with the end of such Fiscal QuarterSEC), and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for the Company and its Restricted Subsidiaries, which consolidated statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP audited and certified (except for normal adjustments without qualification) by a firm of independent certified public accountants of recognized standing selected by the Company and accruals and the lack of footnotes and other presentation items) consistent with past practiceacceptable to Agent, and certified as accurate by the Chief Financial Officer of the Company, and (B) shall set forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal QuarterYear;
(iiib) Within ninety (90) as soon as available and in any event within 45 days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for first three quarters of each Fiscal Year (or within 50 days after the end of any such yearFiscal Quarter with respect to which a Form 12b-25 has been duly filed with the SEC), and consolidated balance sheets of the Company and its Restricted Subsidiaries as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit quarter and as consolidated statements of the end of the preceding Fiscal Year, all of which statements income and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements consolidated statement of cash flows of the Company and its Restricted Subsidiaries for the period commencing at the end of the previous fiscal quarter and ending with the end of such fiscal quarter and consolidated statements of income and a consolidated statement of cash flows of the Company and its Restricted Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified by a Senior Officer of the Company as having been prepared in accordance with GAAP (subject to the absence of footnotes and normal year-end audit adjustments);
(c) as soon as available, and in any event within 30 days after the end of each month (but within 90 days after the last month in a Fiscal Year (or within 105 days after the last month in a Fiscal Year with respect to which a Form 12b-25 has been duly filed with the SEC) and 45 days after the last month of any Fiscal Quarter (or within 50 days after the last month of any such Fiscal Quarter with respect to which a Form 12b-25 has been duly filed with the SEC)), unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on a consolidated basisbasis for the Company and its Restricted Subsidiaries, setting forth in comparative form figures for the corresponding date or period from the preceding Fiscal Year and certified by a Senior Officer of the Company as having been prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (b) and (c) above, a Compliance Certificate executed by a Senior Officer of Borrower Agent, certifying compliance with Section 10.3 (or, if a Testing Period is not then in effect, certifying the calculation of the Fixed Charge Coverage Ratio) and setting forth any change in the identity of the Restricted Subsidiaries, Unrestricted Subsidiaries and Foreign Subsidiaries as at the end of such Fiscal Yearyear or period, as the case may be, from the Restricted Subsidiaries, Unrestricted Subsidiaries and Foreign Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be;
(ive) As soon as practicable and in any event before November 30 upon request by Agent, copies of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications management letters submitted to the Company or any of its Subsidiaries Borrowers by its their accountants in connection with each annual, interim or special audit or review of any type of the such financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesstatements;
(viif) Promptlynot later than February 28 of each Fiscal Year, with copies projections of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionBorrowers’ consolidated balance sheets, results of operations, cash flow and Excess Availability for such Fiscal Year, month by month;
(g) at Agent’s or prospects any Collateral Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, all in form reasonably satisfactory to Agent and each Collateral Agent;
(h) promptly after the filing thereof, copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the SEC or any securities exchange; and copies of any press releases made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(i) at Agent’s request, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(j) such other reports and information (financial or otherwise) as Agent or any Collateral Agent may reasonably request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business. Documents required to be delivered pursuant to Section 10.1.2(a) or (b) or Section 10.1.2(h) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or any provides a link thereto on the Company’s website on the Internet at the website address of its subsidiaries as ▇▇▇.▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Warrant Holder Company’s behalf on an Internet or intranet website, if any, to which each Lender and Agent have access (whether a commercial, third-party website or Initial Holder) may requestwhether sponsored by Agent); provided that the Company shall not notify Agent (by telecopier or electronic mail) of the posting of any such documents and provide to Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to deliver provide paper copies of the Compliance Certificates required by Section 10.1.2(d) to Agent. Except for such Compliance Certificates, Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Obligors hereby acknowledge that (a) Agent will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Obligors hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and notices under this (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Obligors or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Obligor hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Obligor shall be deemed to have authorized Agent, Collateral Agents, the Joint Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to such Obligor or its securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10(a15.12); (y) if all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Warrant Holder Platform designated “Public Investor;” and (or Initial Holderz) is receiving Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementPlatform not designated “Public Investor.”
Appears in 1 contract
Sources: Loan Agreement (Solo Cup CO)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record account with respect to its business activities in which proper entries are made reflecting all material financial transactions that are necessary to permit preparation of financial statements in accordance with GAAP; and account cause to be prepared and furnished to Administrative Agent and Lenders the following (all to be prepared in accordance with GAAP consistently applied throughout on a consistent basis, unless Borrowers' certified public accountants concur in any change therein, such change is disclosed to Administrative Agent and is consistent with GAAP (provided, that for purposes of determining compliance with the periods covered covenant contained in which full SECTION 10.3, all accounting terms employed herein shall be interpreted and true entries will all accounting determinations hereunder shall be made of all dealings or transactions relating in accordance with GAAP as in effect on the Restatement Effective Date and applied on a basis consistent with the application used in the financial statements referred to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:in Section 9.1.9):
(i) As as soon as practicable available, and in any event within thirty 120 days after the close of each Fiscal Year audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders' equity and cash flow, on a Consolidated basis, certified without an Impermissible Qualification by a firm of independent certified public accountants of recognized national standing selected by Borrowers but reasonably acceptable to Administrative Agent and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(30ii) as soon as available, and in any event within 30 days after the end of each monthmonth hereafter (but within 60 days after the last month in a Fiscal Year), including the month unaudited balance sheets of March, June, September Borrowers and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company its Subsidiaries as of the end of such monthmonth and the related unaudited statements of income and cash flow for such month and for the portion of Borrowers' Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrowers as prepared in accordance with GAAP (except and fairly presenting in all material respects the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding such month and year-to-date periods in the immediately preceding fiscal year period subject only to changes from audit and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within fortyyear-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for except that such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall statements need not contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarternotes;
(iii) Within ninety (90) days promptly after the end sending or filing thereof, as the case may be, copies of each Fiscal Yearany proxy statements, (A) audited consolidated financial statements or reports which any Borrower has made generally available to its shareholders; copies of incomeany regular, retained earnings periodic and cash flows special reports or registration statements or prospectuses which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Borrower to the Company for such year, and consolidated balance sheets of public concerning material changes to or developments in the Company as of the end business of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal YearBorrower;
(iv) As soon as practicable and promptly after the sending or filing thereof, copies of any annual report to be filed in any event before November 30 of accordance with ERISA in connection with each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);Plan; and
(v) If such other data and information (financial or otherwise) as Administrative Agent, from time to time, may reasonably request, bearing upon or related to the Company shall otherwise prepare Collateral or have available any Borrower's or Subsidiary's financial statements and other information condition or results of operations. The timely delivery by Borrowers to Administrative Agent of the annual report on form 10-K for the Company Parent and its Consolidated Subsidiaries on a consolidated basisshall satisfy Borrowers' obligations under SECTION 10.1.3(I) above, or shall provide their Governing Bodies (as applicable) provided that such form 10-K satisfies all of the requirements of SECTION 10.1.3(I). Concurrently with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type delivery of the financial statements or related internal control systemsdescribed in clause (i) of this SECTION 10.1.3, including any comment letters Borrowers shall deliver to Administrative Agent a copy of the accountants' letter to Borrowers' management that is prepared in connection with such financial statements. Concurrently with the delivery of the financial statements described in clauses (or drafts thereofi) delivered to management and all responses thereto, and (Bii) unless disclosed in SEC Reportsof this SECTION 10.1.3, acquisition analyses for material acquisitions, presentations Borrowers shall cause to lenders, financial institutions or potential investors, consultants’ reports relating be prepared and furnished to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or Administrative Agent a Compliance Certificate executed by the Company or any chief financial officer of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementBorrowers.
Appears in 1 contract
Sources: Loan and Security Agreement (IMI of Arlington, Inc.)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company (a) Borrowers shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
provide Access Capital (i) As as soon as practicable and available, but in any event within ninety (90) days after Borrowers' fiscal years, a balance sheet of Borrowers on a Consolidated Basis and on a consolidating basis as at the end of such fiscal year and the related statements of income, retained earnings and changes in cash flow for such fiscal year, setting forth in comparative form the figures as at the end of and for the previous fiscal year, which shall have been reported on by independent certified public accountants who shall be a national "Big Six" accounting firm and shall be accompanied by an unqualified audit report issued by such independent certified public accountants provided, that, the audit report issued in connection with Borrowers' Fiscal Year 1997 may be qualified; (ii) as soon as available, drafts of the balance sheet of Borrowers on a Consolidated Basis and on a consolidating basis as at the end of each of Borrowers' fiscal years and the related statements of income, retained earnings and changes in cash flow for such fiscal year, which have been internally prepared by Borrowers; (iii) as soon as available, but in any event within (x) thirty (30) days after the end close of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation itemsy) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the close of each quarter, the balance sheet as at the end of each Fiscal Quarter including such month and quarter and the fourth (4th) Fiscal Quarter, (A) unaudited consolidated related statements of income, retained earnings and changes in cash flows of the Company flow for such quarter month and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarterquarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which have been internally prepared by Borrowers. All financial statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP required under (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(ivi), together with a written report (or such SEC Report which shall contain the same informationii) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and above shall be prepared in accordance with GAAP GAAP, subject to year-end adjustments in the case of monthly and generally accepted auditing standardsquarterly statements. Together with the financial statements furnished pursuant to (i) above, Borrowers shall deliver a certificate of Borrowers' certified public accountants addressed to Access Capital stating that (Bi) they have caused this Agreement and the Ancillary Agreements to be reviewed and (ii) in making the examination necessary for the issuance of such accountants’ comment letter on financial statements, nothing has come to their attention to lead them to believe that any Event of Default or Incipient Event of Default exists and, in particular, they have no knowledge of any Event of Default or Incipient Event of Default or, if such is not the Company’s internal case, specifying such Event of Default or Incipient Event of Default and its nature, when it occurred and whether it is continuing. At the times the financial statements are furnished pursuant to (i) and (ii) above, a certificate of each Borrower's President or accounting systems or controls which Chief Financial Officer shall be issued as well as delivered to Access Capital stating that, based on an examination sufficient to enable him to make an informed statement, no Event of Default or Incipient Event of Default exists, or, if such is not the case, specifying such Event of Default or Incipient Event of Default and its nature, when it occurred, whether it is continuing and the steps being taken by the Borrowers with respect to such event. If any internally prepared financial information, including that required under this paragraph is reasonably unsatisfactory in any manner to Access Capital, Access Capital may request that Borrowers' independent certified public accountants review same.
(b) Each Borrower shall furnish Access Capital with written notice that such Borrower has failed to comply with the reporting or other requirements of the FCC promptly after such Borrower becomes aware of any such failure if such failure could reasonably be expected to have a material adverse effect on such Borrower.
(c) Each Borrower shall promptly furnish Access Capital with copies of all any statements, reports and other reports submitted by communications which such Borrower shall have provided to or received from the Company’s accountants; and FCC or the Company agrees that they shall request such a comment letter to be prepared Archdiocese in connection with each audit(i) actual or claimed liability of such Borrower to the FCC or the Archdiocese, (Cii) a written report default by a Borrower of (which may include a SEC Report that contains x) FCC Rules, (y) the same information) providing explanations requirements of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and license issued to a Borrower or (Dz) the certification License Agreement, (iii) the termination or revocation of (x) any license issued to a Borrower or (y) the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
License Agreement or (iv) As soon as practicable and in the amendment or modification of any event before November 30 of each year, license issued to a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);Borrower.
(vd) If the Company Holdings shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also promptly furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, Access Capital with copies of all amendmentsregular, consent letters, waivers or modifications to, periodic and any material notices or special reports provided by any Person to which it files with the Company Securities and Exchange Commission or any of its Subsidiaries pursuant to the terms of or in connection withgovernmental authority which may be substituted therefor, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementnational securities exchange.
Appears in 1 contract
Sources: Loan and Security Agreement (Magnavision Corporation)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record account with respect to its business activities and account ensure that proper entries are made reflecting all its financial transactions in accordance with sound business practices sufficient to allow the preparation based thereon of financial statements in accordance with GAAP; and cause to be prepared and to be furnished to Agents and Lenders the following (all to be prepared in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:on a consistent basis):
(i) As as soon as practicable available, and in any event within one hundred (100) days after the close of each Fiscal Year, audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, Shareholders’ equity and cash flow, on a Consolidated basis, certified without material qualification by a firm of independent certified public accountants of recognized national standing selected by Borrowers (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date periodfirst two calendar months of each of Borrowers’ Fiscal Quarters, and an unaudited consolidated balance sheet sheets of the Company Borrowers and their respective Subsidiaries as of the end of such month and the related consolidated statements of operations and reinvested earnings and of cash flows for such month and for the portion of Borrowers’ Fiscal Year ended at the end of such month, prepared in accordance with GAAP (except for normal adjustments on a Consolidated basis and accruals and the lack of footnotes and other presentation items) consistent with past practicethe financial information prepared for Ryerson’s management, (B) setting forth in each case in comparative form, form the corresponding figures for the actual results preceding Fiscal Year; provided that so long as Availability for each day during a Fiscal Quarter is at least $300,000,000, the corresponding foregoing monthly financial statements in respect of each calendar month and year-to-date periods in of such Fiscal Quarter shall be furnished to Administrative Agent within 30 days after the immediately preceding fiscal year and amounts projected for end of such month pursuant to Section 10(a)(iv), and Fiscal Quarter;
(iii) a copy of the monthly Credit Review Alert Report;
(ii) Within as soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning first three Fiscal Quarters of the then current each Fiscal Year to the end of such Fiscal QuarterYear, and unaudited consolidated balance sheets of the Company Borrowers and their Subsidiaries as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals Quarter and the lack related unaudited statements of footnotes income and other presentation items) consistent with past practice, cash flow for such Fiscal Quarter and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding portion of Borrowers’ Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)then elapsed, together with on a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such yearConsolidated basis, setting forth in each case, case in comparative form, form the corresponding figures for the period covered preceding Fiscal Year and certified by the preceding annual audit and principal financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on fairly presenting the Company’s internal Consolidated financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; position and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(iv) concurrently with the delivery of cash flows each Borrowing Base Certificate pursuant to Section 8.4, a summary of all of each Borrower’s trade payables as of the Company last Business Day of each month, specifying the name of and its consolidated Subsidiaries on balance due each trade creditor, and, at Administrative Agent’s or any Lender’s request, monthly detailed trade payable agings in form acceptable to Administrative Agent; provided that as long as Availability for each day during a consolidated basisFiscal Quarter is at least $150,000,000, as at such summary may be furnished quarterly within 30 days after the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 Quarter; provided further that such summary information shall not be required to be delivered until following the full implementation of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii)SAP by Borrower;
(v) If promptly after the Company shall otherwise prepare sending or have available financial filing thereof, copies of any proxy statements; copies of any regular, periodic and special reports or registration statements and or prospectuses that any Borrower files with the SEC or any other information for the Company and its Subsidiaries on a consolidated basisGovernmental Authority, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same securities exchange; and copies of any press releases or other statements made available by a Borrower to the Warrant Holders public concerning material changes to or developments in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions business of this Section 10(a);such Borrower; and
(vi) When available, (A) all significant such other reports or written communications submitted to the Company and information as any Agent or any of its Subsidiaries by its accountants Collateral Agent may reasonably request from time to time in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, Collateral and (B) unless disclosed such other reports and information (financial or otherwise) as any Agent may reasonably request from time to time in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, connection with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company Collateral or any of its Subsidiaries pursuant to the terms of Borrower’s, Subsidiary’s or in connection with, any Purchaser Document other Obligor’s financial condition or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Credit Agreement (Ryerson Inc.)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made that are sufficient to prepare financial statements in accordance with GAAP consistently applied throughout GAAP; and furnish to the periods covered Administrative Agent (for distribution to the Lenders in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:accordance with customary practice):
(ia) As as soon as practicable available, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) 90 days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated a balance sheets of the Company sheet as of the end of such yearFiscal Year and the related statements of income, setting forth in each case, in comparative form, corresponding figures cash flow and stockholders’ equity for the period covered by the preceding annual audit and as of the end of the preceding such Fiscal Year, all of on a consolidated basis for the Borrower and its Subsidiaries, which consolidated statements and balance sheets shall be audited and certified (without qualification as to going concern or scope of audit and shall state that such consolidated financial statements fairly present, in reasonable detail all material respects, the consolidated financial position of the Borrower and satisfactory its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in scope to conformity with GAAP and that the Warrant Holders and prepared audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards in the Company and audited United States) by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected a firm of independent certified public accountants of recognized standing selected by the Company Borrower and reasonably satisfactory acceptable to the Warrant HoldersAdministrative Agent (it being understood that PricewaterhouseCoopers LLP is acceptable to the Administrative Agent), whose opinion shall be unqualified and shall be set forth in comparative form corresponding figures for the preceding Fiscal Year;
(b) as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters in any Fiscal Year (commencing with the Fiscal Quarter ended on or about December 30, 2017), an unaudited balance sheet as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrower and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of the Borrower as prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting in all material respects the financial position and results of operations for the Borrower and its Subsidiaries for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes;
(Bc) such accountants’ comment letter on concurrently with delivery of financial statements under clauses (a) and (b) above, or more frequently if requested by the Company’s internal Administrative Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer or accounting systems or controls which shall be issued as well as treasurer of the Borrower;
(d) concurrently with delivery of financial statements under clause (a) above, copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements management letters and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant material reports or written communications submitted to the Company or any of its Subsidiaries Borrower by its accountants in connection with such financial statements;
(e) not later than 75 days after the end of each annualFiscal Year, interim projections of the Borrower’s consolidated balance sheets, results of operations and cash flow for the next Fiscal Year, quarter by quarter;
(f) for so long as any Senior Note remains outstanding, on the Business Day closest to the date which is six (6) months prior to the Senior Notes Maturity Date and within 5 Business Days after the end of each calendar month thereafter until the Senior Notes Maturity Date, a certificate of a Senior Officer of the Borrower in the form of Exhibit H demonstrating the Borrower’s compliance with the Liquidity Threshold as of such date;
(g) promptly after the sending or special audit or review filing thereof, copies of any type of the proxy statements, financial statements or related internal control systems, including reports that any comment letters (or drafts thereof) delivered Loan Party has made generally available to management its shareholders; and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendmentsany regular, consent letters, waivers periodic and special reports or modifications to, and registration statements or prospectuses that any material notices or reports provided by any Person to Loan Party files with the Company SEC or any of its Subsidiaries pursuant to the terms of or in connection withother Governmental Authority, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or securities exchange (excluding listing applications and other routine reports filed with any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Eventsecurities exchange); and
(ixh) From such other reports and information (financial or otherwise) as the Administrative Agent may request from time to timetime in connection with any Collateral or the Borrower’s, any Subsidiary’s or other Loan Party’s financial condition or business. Documents required to be delivered pursuant to Section 6.02(a), Section 6.02(b) or Section 6.02(g) (to the extent such additional information regarding documents are included in materials otherwise filed with the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial HolderSEC) may requestbe delivered electronically, shall be deemed to have been delivered on the date on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Company Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, upon request, shall deliver paper copies of such documents to (i) the Administrative Agent and (ii) any Lender. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be required obligated to, make available to deliver the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and notices under this Section 10(a(b) if certain of the Warrant Holder Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or Initial Holderits Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) is receiving all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.word
Appears in 1 contract
Sources: Credit Agreement (Sanmina Corp)
Financial and Other Information. The Company will keepProvide Lender, and will or cause the Manager and/or Lessee to provide to Lender, at its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting address set forth in each caseSection 8.7 and at GMAC Commercial Mortgage Corporation, in comparative form▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year▇▇▇▇▇ ▇▇▇, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇, CPAsthe following financial statements and information on a continuing basis during the term of the Loan:
a. Within ninety (90) days after the end of each fiscal year of the Facility and the Borrower (if different from the Facility) and the Guarantor, respectively, (i) unaudited financial statements of the operations of the Facility, and (ii) audited financial statements of the Borrower and the Guarantor, respectively, prepared by a nationally recognized accounting firm or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory accountant acceptable to the Warrant HoldersLender, whose opinion shall be unqualified and which statements shall be prepared in accordance with GAAP GAAP, and generally accepted auditing standardsshall include a balance sheet and a statement of income and expenses for the year then ended, certified by a financial officer of Borrower or the Guarantor, as the case may be, to be true and correct.
b. Within ninety (B90) such accountants’ comment letter on days after the Company’s internal end of each fiscal year of the Manager or Lessee, as the case may be, unaudited financial statements of the Manager or Lessee prepared by a nationally recognized accounting systems firm or controls independent certified public accountant acceptable to Lender, which statements shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection accordance with each auditGAAP, (C) a written report (which may and shall include a SEC Report that contains balance sheet and a statement of income and expenses for the same informationyear then ended, and, shall be certified as true and correct in all material respects by a financial officer of the Manager or Lessee, as the case may be.
c. Within forty-five (45) providing explanations days after the end of any material variances each fiscal quarter of the Facility and Borrower (if different from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal YearFacility), and (D) the certification unaudited financial statements of the Chief Financial Officer operations of the Company that all such Financial Statements present fairly Facility and Borrower prepared in accordance with GAAP GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended, and occupancy and patient day statistics, and shall be certified as true and correct in all material respects by a financial positionofficer of Borrower to be true and correct.
d. Within forty-five (45) days after the end of each fiscal quarter of the Manager or Lessee, results of operations as the case may be, and the Guarantor, unaudited financial statements of cash flows the Manager or Lessee and the Guarantor, respectively, prepared in accordance with GAAP, which shall include a balance sheet and statement of income and expenses for the quarter then ended, and shall be certified as true and correct in all material respects by a financial officer of the Company and its consolidated Subsidiaries on a consolidated basisManager, Lessee or the Guarantor, as at the case may be, to be true and correct.
e. Within forty-five (45) days of the end of each calendar quarter, a statement of the number of bed days available and the actual patient days incurred for the quarter, together with quarterly census information of the Facility as of the end of such Fiscal Year;
quarter in sufficient detail to show patient-mix (ivi.e., private, Medicare, Medicaid, and V.A.) As soon on a daily average basis for such year through the end of such quarter, certified by the chief financial officer of Borrower or Manager or Lessee, as practicable the case may be, to be true and in any event before November 30 of each year, a Budget and Projections for each month correct. Such statements of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company Facility shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or accompanied by the Company or any Summary of its Subsidiaries to any such Person;Financial Statements and Census Data attached hereto as Exhibit "D".
f. Within thirty (viii30) Promptlydays after the filing deadline, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From as may be extended from time to time, such additional information regarding copies of all federal, state and local tax returns of Borrower and Guarantor, together with all supporting documentation and required schedules.
g. Within ten (10) days of filing or receipt, all Medicare and/or Medicaid cost reports and any amendments thereto filed with respect to the businessFacility, propertiesand all responses, financial position, results of operationsaudit reports, or prospects other inquiries with respect to such cost reports.
h. Within ten (10) days of receipt, a copy of the Company Medicaid Rate Calculation Worksheet (or the equivalent thereof) issued by the appropriate Medicaid Agency for the Facility.
i. Within ten (10) days of receipt, copies of all licensure and certification survey reports and statements of deficiencies (with plans of correction attached thereto).
j. Within three (3) days of receipt, any and all notices (regardless of form) from any and all licensing and/or certifying agencies that the Facility license and/or the Medicare and/or Medicaid certification of the Facility is being downgraded to a substandard category, revoked, or suspended or that any such action is pending or being considered.
k. Upon Lender's request, evidence of payment by Borrower or Manager or Lessee of any applicable provider bed taxes or similar taxes, which taxes Borrower agrees to pay.
l. Within one hundred twenty (120) days, and more frequently if requested by Lender, an aged accounts receivable report of the Facility in sufficient detail to show amounts due from each class of patient-mix (i.e., private, Medicare, Medicaid and V.A.) by the account age classifications of 30 days, 60 days, 90 days, 120 days, and over 120 days.
m. Within forty-five (45) days of the end of each calendar quarter, a certificate of the chief financial officer of the Borrower confirming compliance with the covenants and requirements set forth above.
n. The Lender reserves the right to require that the annual financial statements of the Borrower and the Manager or Lessee be audited and prepared by a nationally recognized accounting firm or independent certified public accountant acceptable to Lender if (i) an Event of Default exists, (ii) if required by internal policy or by any investor in any securities backed in whole or in part by the Loan or any rating agency rating such securities, or (iii) if Lender has reasonable grounds to believe that the unaudited financial statements do not accurately represent the financial condition of its subsidiaries the Borrower or the Manager or Lessee, as the Warrant Holder case may be.
o. The Lender further reserves the right to require such other financial information of Borrower, Guarantor, Manager, the Facility and/or the Lessee in such form and at such other times (including monthly or Initial Holdermore frequently) as Lender shall deem necessary, and Borrower agrees promptly to provide or to cause to be provided, such information to Lender. All financial statements must be in the form and detail as Lender may from time to time reasonably request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Loan Agreement (Ensign Group, Inc)
Financial and Other Information. The Company will keepFrom and after the Closing Date, and will cause its Subsidiaries the Borrower will, furnish to keepthe Agent, proper books with copies for each of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) 120 days after the end of each Fiscal Year, commencing with Fiscal Year 2003, (Ai) Consolidated balance sheets and Consolidated income statements showing the financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations during such year, and (ii) a Consolidated statement of shareholders' equity and a Consolidated statement of cash flow, as of the close of such Fiscal Year, all the foregoing financial statements to be audited consolidated by a Big 4 or other independent certified public accountants reasonably acceptable to the Required Lenders, and to be in form and substance reasonably acceptable to the Required Lenders;
(b) within 30 days after the end of each fiscal month unaudited Consolidated income statements of incomethe Borrower and its Subsidiaries and within 60 days after the end of each Fiscal Quarter unaudited Consolidated and consolidating balance sheets and Consolidated and consolidating income statements showing the financial condition and results of operations of the Borrower and its Subsidiaries as of the end of each such quarter, retained earnings a Consolidated and consolidating statement of shareholders' equity and a Consolidated and consolidating statement of cash flow as of the end of each such quarter, prepared and certified by an Approved Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries and as having been prepared in accordance with GAAP consistently applied, setting forth in the case of each consolidated statement in comparative form the corresponding figures for the corresponding quarter of the preceding year and corresponding figures for the period beginning with the first day of the current Fiscal Year and ending on the last day of the relevant Fiscal Quarter and the corresponding period for the previous Fiscal Year, in each case subject to footnotes and normal year-end audit adjustments;
(i) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by the Borrower with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934; (ii) as soon as practicable, copies of all material reports, forms, filings and financial information submitted to any other Governmental Authority and all material reports submitted to its interest holders; (iii) within 5 Business Days after receipt by the Borrower thereof, copies of any exception reports prepared by any Gaming Authority and (iv) within 5 Business Days of filing by the Borrower with any Gaming Authority, copies of any and all reports of borrowings on form 8.130 or its equivalent;
(d) concurrently with any delivery under (a) or (b) (solely in the case of quarterly deliveries) above, a certificate of the firm or Person referred to therein (which certificate furnished by the independent public accountants referred to in paragraph (a) above may be limited to accounting matters and disclaim responsibility for legal interpretations and shall be in a form to be reasonably agreed upon by the Borrower, such independent public accountants and the Agent (acting at the reasonable direction of the Required Lenders)) certifying that during their audit or preparation, as applicable, of such financial statements nothing has come to its, his or her attention that would result in an Event or Event of Default has occurred (including recognizing (in the case of an audit performed by a Big 4 or other independent certified public accountants reasonably acceptable to the Required Lenders), however, that the scope and purpose of their audit was not to determine compliance with the terms of this Agreement or whether an Event or Event of Default has otherwise occurred); provided, however, that any certificate delivered concurrently with (a) above shall be accompanied by a supplemental certificate confirming the accuracy of the accountants' certificate (and shall in any event include calculations demonstrating compliance with the financial covenants set forth herein) and signed by an Approved Officer of the Borrower. The parties hereto agree that in the case of any delivery under (b) above, a certificate from the Chief Financial Officer or Chief Executive Officer of the Borrower shall satisfy the requirements of this Section 7.2(d) with respect to the certification of calculations demonstrating the Borrower's compliance, as of the date of the financial statements being furnished, with the financial covenants set forth herein or, in connection with the occurrence of an Event or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(e) concurrently with any delivery under (a) or (b) (solely in the case of quarterly deliveries) above, a management discussion and analysis certified by an Approved Officer of the Borrower describing any differences between the reported financial results under the financial statements delivered thereunder from the budget required by Section 7.2(j) below, which shall include, among any other information or explanation reasonably requested by the Agent, (i) the calculation of EBITDA, the Annual Actual Amount of Interest, the Annual Estimated Amount of Interest, the Shortfall Interest Amount or the Excess Interest Amount, if any, and the Excess Cash Flow for the Fiscal Quarter last ended, (ii) a list of any Capital Expenditures (including Renovation Capital Expenditures and Maintenance Capital Expenditures) made during such Fiscal Quarter and shall set forth in connection with any such Capital Expenditures made during such Fiscal Quarter, the amount and nature of any such expenditure with attached copies of any contracts entered into, invoices received and evidence of payment made with respect to any such expenditure together with mechanic's liens releases in connection with any payments made by the Borrower, and (iii) the Reserve Amount and the Operating Cash Reserve Amount at such time and a schedule listing how any cash constituting the Reserve Amount was spent;
(f) concurrently with any delivery under (b) (solely in the case of quarterly deliveries) above, a certificate from an Approved Officer of the Borrower demonstrating that the Borrower shall be in compliance with the minimum EBITDA covenant in Section 8.13 for the four Fiscal Quarter period ending on the immediately succeeding Fiscal Quarter. In addition, the Borrower shall test the EBITDA covenant in Section 8.13 by making a good faith estimate of the EBITDA for the immediately succeeding Fiscal Quarter and adding such number to the sum of the EBITDA for the Fiscal Quarter last ended (the "Last Ended Fiscal Quarter") and for the two Fiscal Quarters ending immediately prior to the Last Ended Fiscal Quarter;
(g) concurrently with any delivery under (a) above, a management letter prepared by the independent public accountants who reported on the financial statements delivered under (a) above, with respect to the internal audit and financial controls of the Borrower and its Subsidiaries;
(h) any gaming reports generated by the Borrower;
(i) within two Business Days after receipt of any response from Aladdin Bazaar to the Borrower's Plan, a copy of such response (or a written summary thereof in the event such response is not in writing) and immediately when delivered to Aladdin Bazaar (but in no event later than 15 Business Days after receipt of Aladdin Bazaar's response), the Borrower's counter response and any proposed course of action with respect to making any Renovation Capital Expenditures (it being agreed that any further responses from Aladdin Bazaar shall be delivered to the Agent within two Business Days after receipt thereof by the Borrower and the Borrower shall deliver its counter response(s) and any proposed course(s) of action to Aladdin Bazaar and the Agent within 15 Business Days after its receipt of any response from Aladdin Bazaar);
(j) as soon as available, but in any event not later than December 31 of each Fiscal Year, the Borrower's annual internal operating budget (which shall list with reasonable specificity the Borrower's good faith estimate of planned Renovation Capital Expenditures through the third Anniversary Date, Maintenance Capital Expenditures, and other Capital Expenditures) for the next Fiscal Year, and as soon as prepared and available any amendments thereof prepared in the ordinary course;
(k) as soon as available, but in any event not later than December 31 of each Fiscal Year, a consolidated and consolidating plan and financial forecast for the next Fiscal Year and each subsequent Fiscal Year through the Maturity Date, including (a) forecasted consolidated and consolidating balance sheets and forecasted consolidated and consolidating statements of income and cash flows of the Company Borrower and its Subsidiaries for such yearFiscal Years, and consolidated balance sheets together with an explanation of the Company assumptions on which such forecasts are based and (b) such other information and projections for such Fiscal Years as of the Agent may reasonably request;
(l) as soon as available, but in any event not later than 30 calendar days following the end of such yeareach fiscal month, setting forth in each case, in comparative form, corresponding figures a monthly operating report for the period covered month then ended which shall include items used by the preceding annual audit Borrower in measuring its operating and financial performance in the ordinary course which shall include, without limitation, the average daily room rate, food and beverage revenue per room, gaming revenue and the other items set forth on Exhibit J or as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall may otherwise be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company Borrower in the ordinary course of its management and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory financial reporting so long as any such items are acceptable to the Warrant HoldersAgent (acting upon the reasonable direction of the Required Lenders), whose opinion shall be unqualified and shall be prepared in accordance together with GAAP and generally accepted auditing standardssuch other information reasonably requested by Agent or any Lender;
(m) promptly upon receipt thereof, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each auditmaterial notices, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yearreports, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial positionbudgets, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basisforecasts, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each yearproposals, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Companystudies, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basisprovided by any Manager, any casino operator or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a)Leasing Manager;
(vin) When availableat the Agent's request, (A) all significant reports a copy of each annual report or written communications submitted other filing filed with respect to each Plan of the Company Borrower or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its SubsidiariesERISA Affiliate;
(viio) Promptlypromptly upon the earlier of preparation or receipt thereof, with copies of all amendments, consent letters, waivers or modifications to, any proposed agreements and any material notices or reports provided by any Person Plans and Specifications with respect to the Company or Time Share Premises so that the Agent (acting at the reasonable direction of the Required Term Loan A Lenders (other than the FF&E Lender) may determine that any of its Subsidiaries pursuant to the terms foregoing are consistent with the Time Share Plan and thereafter copies of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Eventexecuted agreements; and
(ixp) From time to time, such additional information as the Agent may from time to time reasonably request, or which the Agent shall reasonably request upon the reasonable request of any Lender, regarding the businessfinancial and business affairs, properties, financial position, results of operations, operations or prospects of the Company or any of Borrower and its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementSubsidiaries.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and reasonably acceptable to Lender, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year; provided, that the Borrowers shall also deliver to the Lender, at the time such audited statements are delivered, an internally prepared annual balance sheet and income statement broken down by geographical area and consistent in presentation with prior practices;
(b) as soon as available, and in any event within 45 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date periodfirst three Fiscal Quarters of each Fiscal Year, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthFiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year (to the extent provided for in a Form 10-Q) and certified on behalf of the Borrowers by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (except and fairly presenting, in all material respects, the financial position and results of operations for such Fiscal Quarter and period, subject to normal year‑end adjustments and accruals the absence of footnotes; provided, that the Borrowers shall also deliver to the Lender, at the time such quarterly statements are delivered, an internally prepared quarterly balance sheet and income statement broken down by geographical area and consistent in presentation with prior practices;
(c) as soon as available, and in any event within 30 days after the end of each month (but within 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the lack related statements of footnotes income and other presentation items) consistent with past practicecash flow for such month and for the portion of the Fiscal Year then elapsed, (B) on a consolidated basis for Borrowers and Subsidiaries, setting forth in comparative form, form corresponding figures for the actual preceding Fiscal Year and certified on behalf of the Borrowers by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting, in all material respects, the financial position and results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected of operations for such month pursuant and period, subject to Section 10(a)(iv)normal year‑end adjustments and the absence of footnotes; provided, that the Borrowers shall also deliver to the Lender, at the time such monthly statements are delivered, an internally prepared monthly balance sheet and (iii) a copy of the monthly Credit Review Alert Reportincome statement broken down by geographical area and consistent in presentation with prior practices;
(iid) Within forty-five concurrently with delivery of financial statements under clauses (45a), (b) and (c) above (regardless of whether a Trigger Period is in effect), or more frequently if requested by Lender while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Borrower Agent;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such financial statements, to the extent that the Borrowers’ accountants consent to such delivery (the Borrowers hereby agree to request such consent);
(f) not later than 10 Business Days after delivery of financial statements under clause (a) above (commencing with financial statements for the Fiscal Year ending December 31, 2016), a certificate (which may be included in the applicable Compliance Certificate) setting forth a calculation of “Excess Cash Flow” (as defined in the Term Loan Documents) for such Fiscal Year;
(g) not later than 60 days after the end of each Fiscal Quarter including the fourth Year (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and commencing with projections for the period from the beginning of the then current Fiscal Year ending December 31, 2016, to the end be delivered within 60 days after December 31, 2015) projections of such Fiscal Quarter, and unaudited Borrowers’ consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, cash flow and Availability for the then-current Fiscal Year, month by month, and for the next two Fiscal Years, year by year;
(h) at Lender’s reasonable request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Lender;
(i) except as otherwise provided in clauses (a) and (b) above, promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower, in each case which shall be deemed received by Lender (for purposes of this clause (h) and, for the avoidance of doubt, not for purposes of clauses (a) and (b) above) when filed with the Securities and Exchange Commission;
(j) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(k) such other reports and information (financial or otherwise) as the Warrant Holder (Lender may reasonably request from time to time in connection with any Collateral or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (any Borrower’s, Subsidiary’s or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.other Obligor’s financial condition or business
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made that are sufficient to prepare financial statements in accordance with GAAP consistently applied throughout GAAP; and furnish to the periods covered Administrative Agent (for distribution to the Lenders in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:accordance with customary practice):
(ia) As as soon as practicable available, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) 90 days after the end of each Fiscal Quarter including Year (commencing with the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarterended on or about September 28, and unaudited consolidated 2019), a balance sheets of the Company sheet as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and stockholders’ equity for such Fiscal Year, on a consolidated basis for the Borrower and its Subsidiaries, which consolidated statements and balance sheets shall be audited and certified (without qualification as to going concern or scope of audit and shall state that such consolidated financial statements fairly present, in reasonable detailall material respects, the consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards in the United States) by a firm of independent certified public accountants of recognized standing selected by the Borrower and reasonably acceptable to the Administrative Agent (it being understood that PricewaterhouseCoopers LLP is acceptable to the Administrative Agent), and shall set forth in comparative form corresponding figures for the preceding Fiscal Year;
(b) as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters in any Fiscal Year (commencing with the Fiscal Quarter ended on or about December 31, 2018), an unaudited balance sheet as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for the Borrower and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of the Borrower as prepared in accordance with GAAP (except and fairly presenting in all material respects the financial position and results of operations for the Borrower and its Subsidiaries for such Fiscal Quarter and period, subject to normal year‑end adjustments and accruals the absence of footnotes;
(c) concurrently with delivery of financial statements under clauses (a) and (b) above, or more frequently if requested by the lack Administrative Agent while a Default or Event of footnotes Default exists, a Compliance Certificate executed by the chief financial officer or treasurer of the Borrower;
(d) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to the Borrower by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances its accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiie) Within ninety (90) not later than 75 days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows projections of the Company for such year, and Borrower’s consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial positionsheets, results of operations and statements of cash flows of flow for the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such next Fiscal Year, quarter by quarter;
(ivf) As soon as practicable and in [reserved];
(g) promptly after the sending or filing thereof, copies of any event before November 30 of each yearproxy statements, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant or reports that any Loan Party has made generally available to Section 10(a)(i) its shareholders; and Section 10(a)(iicopies of any regular, periodic and special reports or registration statements or prospectuses that any Loan Party files with the SEC or any other Governmental Authority, or any securities exchange (excluding listing applications and other routine reports filed with any securities exchange);
(vh) If promptly following any request therefor, information and documentation reasonably requested by the Company shall otherwise prepare Administrative Agent or have available financial statements any Lender for purposes of compliance with applicable “know your customer” and other information for anti-money-laundering rules and regulations, including, without limitation, the Company and its Subsidiaries on a consolidated basisAct and, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to extent applicable, the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventBeneficial Ownership Regulation; and
(ixi) From such other reports and information (financial or otherwise) as the Administrative Agent may request from time to timetime in connection with any Collateral or the Borrower’s, any Subsidiary’s or other Loan Party’s financial condition or business. Documents required to be delivered pursuant to Section 6.02(a), Section 6.02(b) or Section 6.02(g) (to the extent such additional information regarding documents are included in materials otherwise filed with the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial HolderSEC) may requestbe delivered electronically, shall be deemed to have been delivered on the date on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Company Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, upon request, shall deliver paper copies of such documents to (i) the Administrative Agent and (ii) any Lender. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be required obligated to, make available to deliver the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and notices under this (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Lenders and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10(a10.07); (y) if all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Warrant Holder Platform designated “Public Side Information;” and (or Initial Holderz) is receiving the same information Administrative Agent and notices the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a Purchaser under portion of the Note and Warrant Purchase AgreementPlatform not designated “Public Side Information.”
Appears in 1 contract
Sources: Credit Agreement (Sanmina Corp)
Financial and Other Information. The Company will keepProvide Lender, and will cause Guarantor and Manager to provide to Lender, at its Subsidiaries to keepaddress set forth in Section 8.7 and at GMAC Commercial Mortgage Corporation, proper books 8333 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 1460, Dallas, Texas 75225, the following financial statements and information on a continuing basis during the term of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLoan:
(ia) As soon as practicable and in any event within thirty Within one hundred twenty (30120) days after the end of each monthfiscal year of the Guarantor, consolidated financial statements for the Guarantor and its subsidiaries, including the month of MarchManager, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month Borrower and the year-to-date period, and an unaudited consolidated balance sheet of Facility (if different from the Company as of the end of such monthBorrower), prepared in accordance with GAAP (except for normal adjustments generally accepted accounting principles consistently applied, audited by a nationally recognized accounting firm or independent certified public accounting firm acceptable to the Lender, which statements shall include a balance sheet and accruals a statement of income and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures expenses for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant then ended. In lieu of its obligations hereunder, Guarantor may submit to Section 10(a)(iv)Lender, and (iii) upon its filing thereof, a copy of its Form 10 K as filed with the monthly Credit Review Alert Report;United States Securities and Exchange Commission.
(iib) Within forty-five (45) days after the end of each Fiscal Quarter including fiscal quarter of the fourth Facility (4th) Fiscal Quarterif different from Borrower), (A) unaudited consolidated interim financial statements of incomethe Facility, retained earnings certified as true and cash flows correct in all material respects by a financial officer of the Company for such quarter and for the period from the beginning of the then current Fiscal Year Borrower, subject to the customary year end of such Fiscal Quarteradjustments, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments generally accepted accounting principles consistently applied and accruals shall include a balance sheet, statement of income and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures expenses for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;quarter then ended.
(iiic) Within ninety forty-five (9045) days after the end of each Fiscal Yearfiscal quarter of Borrower, (A) audited consolidated unaudited interim financial statements of incomeBorrower, retained earnings certified as true and cash flows correct in all material respects by a financial officer of the Company for such yearBorrower, and consolidated balance sheets of the Company as of the subject to customary year end of such yearadjustments, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardsaccounting principles consistently and shall include a balance sheet and statement of income and expenses for the quarter then ended.
(d) Within forty-five (45) days after the end of each fiscal quarter of Guarantor, (B) such accountants’ comment letter on the Company’s internal unaudited interim financial or accounting systems or controls statements of Guarantor, certified as true and correct in all material respects by a financial officer of Guarantor, subject to customary year end adjustments, which statements shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; general accounting principles consistently applied and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all its financial transactions; and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be prepared and furnished to each Warrant Holder for so long Lender the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such Warrant Holder holds any Warrant or Warrant Shares:change is disclosed to Lender and is consistent with GAAP and, if required by Lender, the financial covenants set forth in Section 10.3 are amended in a manner requested by Lender to take into account the effects of such change):
(i) As as soon as practicable available, and in any event within thirty ninety (3090) days after the close of each Fiscal Year unaudited balance sheets of (A) Borrowers and (B) Borrowers and their combined Subsidiaries, in each case as of the end of such Fiscal Year, and the related unaudited statements of income and cash flow, in each case on a combined basis, setting forth in each case in comparative form the corresponding combined figures for the preceding Fiscal Year and certified by the principal financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting, in all material respects, the respective combined financial position and results of operations of (C) Borrowers and Anchor and (D) Borrowers and their combined Subsidiaries for such Fiscal Year and period, except that such statements need not contain notes;
(ii) promptly following Lender’s request, as soon as available, and in any event within ninety (90) days after the close of each Fiscal Year audited balance sheets of Parent and its Consolidated Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a Consolidated basis, certified by a firm of independent certified public accountants of recognized national standing selected by Parent but reasonably acceptable to Lender and setting forth in each case in comparative form the corresponding combined and combining (by business unit) figures for the preceding Fiscal Year;
(iii) as soon as available, and in any event within forty-five (45) days after the end of each monthmonth hereafter, including the last month of Marcheach Fiscal Year, June, September and December (A) unaudited consolidated statements balance sheets of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company Borrowers as of the end of such monthmonth and the related unaudited statements of income and cash flow for such month and for the portion of such Fiscal Year then elapsed, in each case on a combined basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrower Agent as prepared in accordance with GAAP (except and fairly presenting, in all material respects, the combined financial position and results of operations of Borrowers for normal such month and period subject only to changes from audit, income tax adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year end adjustments and amounts projected for except that such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Reportstatements need not contain notes;
(iiiv) Within as soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter hereafter, including the fourth (4th) last Fiscal QuarterQuarter of each Fiscal Year, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company Borrowers and their combined Subsidiaries as of the end of such Fiscal QuarterQuarter and the related unaudited statements of income and cash flow for such Fiscal Quarter and for the portion of such Fiscal Year then elapsed, all in each case on a combined basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of which statements and balance sheets shall be in reasonable detail, Borrower Agent as prepared in accordance with GAAP (except and fairly presenting, in all material respects, the combined financial position and results of operations of Borrowers and their combined Subsidiaries for normal such Fiscal Quarter and period subject only to changes from audit, income tax adjustments and accruals year-end adjustments and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for except that such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall statements need not contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarternotes;
(iiiv) Within ninety not later than fifteen (9015) days after the end of each Fiscal Yearmonth during which Average Availability was less than $3,000,000, (A) audited consolidated statements a listing of income, retained earnings and cash flows all of the Company for such year, and consolidated balance sheets of the Company each Borrower’s trade payables as of the end last Business Day of such yearmonth, setting forth specifying the name of and balance due each trade creditor, and, at Lender’s request, monthly detailed trade payable agings in form acceptable to Lender;
(vi) except to the extent publicly available (including pursuant to filings with the Court), promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by an Borrower to the public concerning material changes to or developments in the business of such Borrower;
(vii) promptly following Lender’s request, copies of any annual report to be filed in accordance with ERISA in connection with each casePlan;
(viii) such other data and information (financial or otherwise) as Lender, from time to time, may reasonably request, bearing upon or related to the Collateral or any Borrower’s or Subsidiary’s financial condition or results of operations;
(ix) after the first full week of the Chapter 11 Cases, and solely in comparative formthe event the combined cash and Cash Equivalents of Borrowers falls below $10,000,000, corresponding figures for on or before the period covered by close of business on each Wednesday during the preceding annual audit and Interim Period, an updated Interim DIP Budget as of the end Friday preceding such Wednesday and a report showing actual results compared to those shown on the Interim DIP Budget for the preceding week;
(x) promptly after delivery thereof to the U.S. Bankruptcy Administrator or any examiner appointed in the Chapter 11 Case, a copy of each report delivered to the U.S. Bankruptcy Administrator or such examiner; and
(xi) promptly after any Borrower’s obtaining knowledge thereof:
(I) any pleading filed with the Court seeking relief from the automatic stay or conversion or dismissal of the preceding Fiscal YearChapter 11 Cases; (II) any offer or other expression of interest from any Person to purchase any material part of the Collateral (other than sales of Inventory in the ordinary course of business); and (III) any proposed sale of any of the Collateral (including with such notice copies of drafts of all instruments and agreements applicable to any such sale), all which shall specify the identity of which statements the proposed purchaser, the terms of the proposed sale and balance sheets shall be in reasonable detail and satisfactory in scope the expected date of closing, subject to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, Court approval; and
(B) such accountants’ comment letter on Copies of all pleadings, motions, reports, applications and other papers filed by any Borrower with the Company’s internal financial or accounting systems or controls which shall be issued Court as well as copies of all billing and expense statements received from any Professional Person. Borrowers shall include counsel for Lender on any “Special Notice List” or other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter similar list of parties to be prepared served with papers in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection Chapter 11 Cases. Concurrently with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type delivery of the financial statements or related internal control systemsdescribed in clauses (i), including any comment letters (or drafts thereofii), (iii) delivered to management and all responses thereto, and (Biv) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylawsthis Section 10.1.3, or more frequently if requested by Lender during any period that a Default or Event of Default exists, Borrowers shall cause to be prepared and furnished to Lender a Compliance Certificate executed by the Company or any chief financial officer of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementBorrower Agent.
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (Enpro Industries, Inc)
Financial and Other Information. The Company will keepProvide Mezzanine Lender and cause Manager to provide to Mezzanine Lender, at its address set forth in Section 8.7, the following financial statements and will cause its Subsidiaries to keep, proper books information during the term of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLoan:
(ia) As soon as practicable and in any event within thirty Within one hundred twenty (30120) days after the end of each monthfiscal year of the Guarantor, including the month of March, June, September and December (A) unaudited consolidated audited financial statements of income, retained earnings and cash flows the operations of the Company for such month Mortgagor and Manager prepared on a consolidated basis and in accordance with GAAP by a nationally recognized accounting firm or independent certified public accounting firm acceptable to the year-to-date periodMezzanine Lender, and an unaudited consolidated which statements shall include a balance sheet and a statement of income and expenses for the Company year then ended. In lieu thereof, Guarantor may submit to Mezzanine Lender, upon its filing thereof, a copy of its form 10-K, as of filed with the United States Securities and Exchange Commission.
(b) Within one hundred twenty (120) days after the end of such montheach fiscal year of Facility (if different from the Mortgagor) internally prepared financial statements of the operations of the Facility, prepared in accordance with GAAP (except for normal adjustments GAAP, which statements shall include a balance sheet and accruals a statement of income and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures expenses for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv)then ended, and (iii) shall be certified as true and correct by a copy financial officer of the monthly Credit Review Alert Report;Mortgagor.
(iic) Within forty-five (45) days after the end of each Fiscal Quarter including fiscal quarter of the fourth (4th) Fiscal QuarterFacility, (A) unaudited consolidated interim financial statements of income, retained earnings and cash flows the operations of the Company for such quarter Facility, certified as true and for the period from the beginning correct in all material respects by a financial officer of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detailBorrower, prepared in accordance with GAAP (except for normal adjustments GAAP, which statements shall include a balance sheet, statement of income and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures expenses for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;quarter then ended.
(iiid) Within ninety forty-five (9045) days after the end of each Fiscal Yearfiscal quarter (except the last fiscal quarter) of the Mortgagor (if different from the Facility), (A) audited consolidated unaudited interim financial statements of income, retained earnings and cash flows the operations of the Company Mortgagor, certified as true and correct in all material respects by a financial officer of Mortgagor, prepared in accordance with GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended.
(e) Within forty-five (45) days after the end of each fiscal quarter of Manager, unaudited interim financial statements of the operations of the Manager, certified as true and correct in all material respects by a financial officer of Manager, prepared in accordance with GAAP, which statements shall include a balance sheet and statement of income and expenses for the quarter then ended.
(f) If and to the extent applicable, within forty-five (45) days after the end of each fiscal quarter of Facility, a statement (which may be the same statement provided to First Mortgage Lender) of the number of unit days available and the actual resident days incurred for such yearquarter, and consolidated balance sheets together with quarterly census information of the Company Facility as of the end of such yearquarter in sufficient detail to show resident-mix (i.e., setting forth in each caseprivate, in comparative formMedicare, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal YearMedicaid, and (DVA) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at daily average basis for such year through the end of such Fiscal Year;quarter, certified by a financial officer of Manager or Borrower to be true and correct, in all material respects.
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(vg) If requested by Mezzanine Lender, within thirty (30) days after the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basisfiling deadline, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to may be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From extended from time to time, such additional information regarding copies of all federal, state and local tax returns of Mortgagor (which may be consolidated into those returns of Guarantor), together with all supporting documentation and required schedules.
(h) Within five (5) days after receipt, any and all notices (regardless of form) from any and all licensing and/or certifying agencies, including but not limited to Medicaid and/or Medicare certification, that the businessFacility's license is being downgraded to a substandard category, properties, financial position, results of operationsrevoked, or prospects suspended, or that action is pending or being considered to downgrade to a substandard category, revoke, or suspend the Facility's license or certification.
(i) If and to the extent applicable, within forty-five (45) days after the end of each of Mortgagor's and Manager's fiscal quarters, and more frequently, if requested by Mezzanine Lender, an aged accounts payable report and an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of resident-mix (i.e., private, Medicare, Medicaid, and V.A.) By the account age classifications of 30 days, 60 days, 90 days, 120 days and over 120 days. Mezzanine Lender reserves the right to require that the annual unaudited financial statements of the Company Facility be audited and prepared by a nationally recognized accounting firm or independent certified public accounting firm acceptable to Mezzanine Lender, at Mortgagor's sole cost and expense, if (i) an Event of Default exists, (ii) if required by internal policy or by any investor in any securities backed in whole or in part by the Loan or any rating agency rating such securities, or (iii) if Mezzanine Lender has reasonable grounds to believe that such unaudited financial statements do not accurately represent the financial condition thereof. The Mezzanine Lender further reserves the right to require such other financial information of Mortgagor, Manager and/or the Facility at such other times (including monthly or more frequently) as it shall deem necessary, in its subsidiaries commercially reasonable discretion. All financial statements must be in such form and detail as the Warrant Holder (or Initial Holder) may Mezzanine Lender shall from time to time request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement, in its commercially reasonable discretion.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Capital Senior Living Corp)
Financial and Other Information. The Each of the Company and USHG will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and each of the Company and USHG shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesPurchaser:
(ia) As as soon as practicable and in any event within thirty (30) days after the end of each month, month (including the last month of March, June, September and December the fiscal year) (Ai) unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Company USHG and its consolidated Subsidiaries for such month and the fiscal year-to-date period, and an unaudited consolidated and consolidating balance sheet sheets of the Company USHG and its consolidated Subsidiaries as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, subject to changes resulting from normal fiscal year-end adjustment, and (Bii) in comparative form, figures for the actual results for the corresponding month and fiscal year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv6.1(d), and (iii) together with a copy written report providing explanations of the monthly Credit Review Alert Reportany material variances;
(iib) Within forty-five as soon as filed with the SEC and in any event within fifty (4550) days after the end of each Fiscal Quarter fiscal quarter including the fourth (4th) Fiscal Quarterquarter, (Ai) unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Company USHG and its consolidated Subsidiaries for such quarter and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterquarter, and unaudited consolidated and consolidating balance sheets of the Company USHG and its consolidated Subsidiaries as of the end of such Fiscal Quarterquarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer chief financial officer of the CompanyUSHG, subject to changes resulting from normal fiscal year-end adjustment, and (Bii) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year fiscal year and amounts projected for such periods pursuant to Section 10(a)(iv6.1(d), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quartervariances;
(iiic) Within ninety as soon as filed with the SEC and in any event within one hundred five (90105) days after the end of each Fiscal Yearfiscal year, (Ai) audited consolidated and consolidating statements of income, retained earnings and cash flows of the Company USHG and its consolidated Subsidiaries for such fiscal year, and consolidated balance sheets of the Company USHG and its consolidated Subsidiaries as of the end of such fiscal year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Yearfiscal year, all of which statements and balance sheets shall be in reasonable detail and reasonably satisfactory in scope to the Warrant Holders Purchasers and prepared by the Company and audited by ▇▇▇▇▇▇▇BDO Seidman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, LLP or another respected firm of independent certified public ▇▇▇▇▇▇ accountants selected by the Company USHG and reasonably satisfactory to the Warrant HoldersPurchasers, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, provided, that each Purchaser hereby agrees that such Purchaser will consider satisfactory any Big 5 accounting firm retained by USHG, and (Bii) such any accountants’ ' comment letter on the Company’s USHG's and its consolidated Subsidiaries' internal financial or accounting systems or controls which shall be issued issued, as well as copies of all other reports submitted by the Company’s USHG's accountants; and the Company agrees provided, that they USHG shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(ivd) As as soon as practicable and in any event before November 30 the end of each fiscal year, a Budget an operating budget and Projections projected financial statements for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company), in the same format as the financial statements provided pursuant to Section 10(a)(iSections 6.1(a), (b) and Section 10(a)(ii(c);
(vi) If as soon as practicable, and in any event at the same time as any notice is given to the Senior Lender (but in no event later than three (3) Business Days after any officer of the Company or USHG obtains knowledge of the occurrence of an event or the existence of a circumstance giving rise to a such a default, Default or Event of Default), notice of any default under the Senior Debt and all Defaults and Events of Default hereunder, and (ii) any other notice, certificate or other document or information given to or received from the Senior Lender not later than five (5) Business Days after the date thereof;
(f) with reasonable promptness, such other business or financial data as the Purchasers may reasonably request, including without limitation all forms and information requested or required by the U.S. Small Business Administration as a result of any Purchaser being a small business investment company;
(g) if USHG or the Company shall otherwise prepare or have available financial statements and other information for the Company USHG and its Subsidiaries on a consolidated and/or consolidating basis, or shall provide their Governing Bodies (as applicable) its Board of Directors with any financial information not otherwise provided for herein, they it shall also furnish the same to the Warrant Holders Purchasers in addition to the financial statements and other information for the Company USHG and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a)6.1;
(vih) When availabletogether with each delivery of financial statements required by Section 6.1(c), a certificate of the accountants who performed the audit in connection with such statements (i) stating that they have reviewed Section 7.19 and Exhibit F hereof (Financial Covenants) and that, in making the audit necessary to the issuance of a report on such financial statements, they have obtained no knowledge of any Default or Event of Default or, if such accountants have obtained knowledge of a Default or Event of Default, specifying the nature and period of existence thereof, and (ii) setting forth the calculations necessary to establish whether or not USHG and its Subsidiaries were in compliance with the covenants as provided in Section 7.19 and Exhibit F as of the date of such statements. Each of the Company and USHG authorizes the Purchasers to discuss the financial condition of the Corporations with USHG's independent certified public accountant and agrees that such discussion or communication shall be without liability to either the Purchasers or USHG's independent certified public accountants. USHG shall deliver a letter addressed to such accountants authorizing them to comply with the provisions of this Section 6.1(h); in any event, such accountants are irrevocably authorized to rely upon a copy of this Agreement as authority for such discussions and communications; and
(i) together with each delivery of financial statements required by Sections 6.1(a) and (b), (i) a certificate of the Company's president or chief financial officer (A) all significant reports stating that, based on an examination sufficient to enable an informed statement, no Default or written communications submitted to Event of Default exists or, if such is not the case, specifying such Default or Event of Default and its nature, when it occurred, whether it is continuing and the steps being taken by the Company with respect to such Default or any Event of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses theretoDefault, and (B) unless disclosed setting forth the calculations necessary to establish whether or not the Company was in SEC Reportscompliance with the covenants provided for in Section 7.19 and Exhibit F as of the date of such statements, acquisition analyses (ii) a detailed report that provides a discussion of the operations and financial condition of USHG and its Subsidiaries for material acquisitions, presentations to lenders, the period covered by such financial institutions or potential investors, consultants’ reports relating statements and a summary and discussion of other matters significant to the Company and/or its Subsidiaries;
business, (viiiii) Promptly, with copies of all amendmentsUSHG's internally prepared consolidated sales projections for each of the next 12 months, consent letterswhich projections shall be updated monthly, waivers or modifications to(iv) monthly point of sale data for the Corporations' ten largest customers, and any material notices or reports provided (v) monthly sales and margins of the Corporations by any Person customer and product line. Such certificate, report, sales projections, point of sale data and monthly sales and margin information shall be in form reasonably satisfactory to the Company or any of its Subsidiaries pursuant to Purchasers. Each Purchaser shall keep confidential all information concerning the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or Corporations furnished by the Company or USHG pursuant to this Section 6.1, as well as all other information concerning the Corporations acquired by the Purchasers by virtue of their status as Purchasers under the Purchaser Documents or as a result of their (or their representatives') attendance as non-voting observers at meetings of the Board of Directors of any of its Subsidiaries the Corporations (including information acquired as a result of any inspection conducted in accordance with Section 6.2 below); provided, that a Purchaser may communicate such information to such Purchaser's officers, employees, attorneys, accountants, consultants and owners, subject to the same confidentiality provisions applicable to such Purchaser. A Purchaser may also disclose such information to any Governmental Authority having jurisdiction over such Person;
(viii) PromptlyPurchaser, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence extent required by such Governmental Authority, provided that (except in the case of any Put Event; and
(ixdisclosures to the U.S. Small Business Administration by a Purchaser which is a Small Business Investment Company) From time such Purchaser shall use reasonable efforts to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of notify the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided USHG prior to such disclosure so that the Company or USHG will have a reasonable amount of time to contest such disclosure if it wishes to do so. A Purchaser may also disclose such information to any other Person in connection with such Purchaser's sale of any participations in, or assignments of, the Notes, Warrants or Warrant Securities, provided that such Person shall not execute a confidentiality agreement requiring the recipient to maintain the confidentiality of the information to the same extent as required hereunder for the Purchaser. Following any Default or Event of Default or as may be reasonably necessary to effect the exercise of rights hereunder, a Purchaser may disclose information to others in connection with the exercise of such Purchaser's rights hereunder or under any of the other Purchaser Documents and as may be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementby applicable law.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Us Home & Garden Inc)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited The consolidated balance sheet of the Company Borrower and its Consolidated Subsidiaries as of the March 3, 2001 and each following fiscal year end of such month, prepared in accordance with GAAP (except for normal adjustments the Borrower and accruals its Consolidated Subsidiaries and the lack related consolidated statements of footnotes income and other presentation items) consistent with past practice, (B) in comparative form, figures cash flows for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year then ended, reported on by Deloitte & Touche (or other independent public accountants of nationally recognized standing) fairly present, in conformity with generally accepted accounting principles, the consolidated financial position of the Borrower and amounts projected its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Reportfiscal year;
(ii) Within forty-five (45) days after the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of such fiscal quarter end and each following fiscal quarter end of each Fiscal Quarter including the Borrower and its Consolidated Subsidiaries (other than the fourth (4thfiscal quarter of any fiscal year) Fiscal Quarter, (A) unaudited and the related consolidated statements of income, retained earnings income and cash flows for the fiscal quarter then ended, set forth in the Borrower's quarterly report on Form 10-Q for the fiscal quarter then ended, a copy of which will be delivered to each of the Company Banks, fairly present, in conformity with generally accepted accounting principles applied on a basis consistent with the most recent audited consolidated financial statements of the Borrower and its Consolidated Subsidiaries delivered to the Banks, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such quarter and for the period from the beginning of the then current Fiscal Year fiscal period, subject to the normal year-end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;adjustments; and
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth there has been no material adverse change in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, assets, operations, properties, condition (financial positionor otherwise), results of operationscontingent liabilities, prospects or prospects material agreements of the Company or any of Borrower and its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices Consolidated Subsidiaries, considered as a Purchaser under the Note and Warrant Purchase Agreementwhole since March 3, 2001.
Appears in 1 contract
Financial and Other Information. The Company will shall:
(a) keep, and will cause its Subsidiaries each Subsidiary to keep, proper adequate records and books of record and account with respect to its business activities in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all its financial transactions; and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be prepared and furnished to each Warrant Holder for so long holder of Notes the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless the Company's certified public accountants concur in any change therein and such Warrant Holder holds any Warrant or Warrant Shares:change is disclosed to each holder of Notes and is consistent with GAAP);
(ib) As soon as practicable and in any event within thirty deliver not later than ninety (3090) days after the end close of each monthFiscal Year (beginning with Fiscal Year ended December 31, including the month of March2000), June, September and December (A) unaudited consolidated unqualified audited financial statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company its Subsidiaries as of the end of such monthyear, prepared in accordance with GAAP on a Consolidated and consolidating basis, certified by a firm of independent certified public accountants of recognized standing selected by the Company but acceptable to Required Holders (except for normal adjustments a qualification for a change in accounting principles with which the accountant concurs and accruals and a going concern qualification as to the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(ivCompany), and (iii) a copy of the monthly Credit Review Alert Report;
(iic) Within deliver not later than forty-five (45) days after the end of each Fiscal Quarter Quarterly accounting period, including the fourth (4th) last quarter of the Company's Fiscal QuarterYear and beginning with the Company's Fiscal Quarter ended December 31, (A) 2000, unaudited consolidated interim financial statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company its Subsidiaries as of the end of such Fiscal Quarterquarter and of the portion of the Company's financial year then elapsed, all on a Consolidated and consolidating basis, certified by the Chief Financial Officer of which statements and balance sheets shall be in reasonable detail, the Company as prepared in accordance with GAAP (except and fairly presenting the financial position and results of operations of the Company and its Subsidiaries for normal such quarter and period subject only to changes from audit and year-end adjustments and accruals except that such statements need not contain notes;
(d) deliver not later than twenty (20) days after the end of each month hereafter, including the last month of the Company's Fiscal Year and beginning with the Company's fiscal month ended January 31, 2001, unaudited interim financial statements and cash budgets in form satisfactory to the Required Holders, of each of the Company and its Subsidiaries as of the end of such month and of the portion of the Company's financial year then elapsed, on a Consolidated and consolidating basis, certified by the principal financial officer of the Company as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of the Company and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(e) deliver promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which the Company or ▇▇▇▇▇▇ has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which the Company and its Subsidiaries files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange;
(f) promptly after the filing thereof, deliver copies of any annual report to be filed with ERISA in connection with each Plan;
(g) promptly after the sending to any holder of Notes, deliver any statement, report or certificate of the Company or any Subsidiary, including without limitation any previously furnished to any holder of Debt, copies of such statement, report or certificate to the extent that the information contained in such statement, report or certificate has not already been delivered to each holder of Notes;
(h) promptly after the execution thereof, deliver copies of all amendments, waivers and modifications to the Fleet Credit Agreement or any Acceptable Credit Facility;
(i) on or before the 10th day of each calendar month, the Company shall provide a report to each holder of Notes with respect to its efforts to raise additional equity or Debt financing;
(j) promptly after (and in any event within 3 Business Days of) becoming aware (A) of the existence of any condition or event which constitutes a Default or an Event of Default, or (B) that the holder of any Note, or of any Debt, shall have given notice or taken any other action with respect to a claimed Default, Event of Default, or default or event of default, a notice specifying the nature of the claimed Default, Event of Default, or default or event of default and the lack notice given or action taken (if any) by such holder and what action the Company is taking or proposes to take with respect thereto; and
(k) deliver such other data and information (financial and otherwise) as any holder of footnotes Notes, from time to time, may reasonably request, bearing upon or related to the Collateral or the Company, Subsidiary Guarantors and other presentation items) consistent each of their Subsidiaries' financial condition or results of operations; Concurrently with past practicethe delivery of the financial statements described in this Section 7.3(b), the Company and Subsidiary Guarantors shall forward to each holder of Notes a copy of the accountants' letter to the Company's management that is prepared in connection with such financial statements and also shall cause to be prepared and shall furnish to each holder of Notes a certificate of the aforesaid certified public accountants certifying to each such holder of Notes that based upon their examination of the financial statements of the Company and its Subsidiaries performed in connection with their examination of said financial statements, they are not aware of any Default or Event of Default, or, if they are aware of such Default or Event of Default, specifying the nature thereof, and certified as accurate acknowledging, in a manner satisfactory to each holder of Notes, that they are aware that each such holder of Notes is relying on such financial statements in making its decisions with respect to the Notes. Concurrently with the delivery of the financial statements described in clauses (b), (c) and (d) of this Section 7.3, or more frequently if requested by any holder of Notes, the Company shall cause to be prepared and furnished to each holder of Notes a Compliance Certificate executed by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesPurchaser:
(ia) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (Ai) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (Bii) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv6.1(e), and (iii) a copy of the monthly Credit Review Alert ReportReport in substantially the same form as annexed as Exhibit K hereto;
(iib) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (Ai) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (Bii) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv6.1(e), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iiic) Within ninety (90) days after the end of each Fiscal Year, (Ai) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders Purchasers and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant HoldersPurchasers, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (Bii) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (Ciii) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (Div) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;.
(ivd) Together with each delivery of financial statements required by Sections 6.1 (b) and 6.1(c), (i) a certificate of the Company’s Chief Executive Officer or Chief Financial Officer (A) stating that, no Default or Event of Default exists or, if such is not the case, specifying such Default or Event of Default and its nature, when it occurred, whether it is continuing and the steps being taken by the Company with respect to such Default or Event of Default, and (B) setting forth the calculations necessary to establish whether or not the Company was in compliance with the financial covenants set forth in Section 7.8 as of the date of such statements and a discussion of any transactions being explored, under consideration, or being negotiated by the Company which is outside the ordinary course of business, including, without limitation, whether any advisors have been hired and the scope and terms of such engagement.
(e) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(iSections 6.1(a) and Section 10(a)(ii(b);
(vi) As soon as practicable, and in any event at the same time as any notice is given to the Senior Lenders (but in no event later than three (3) Business Days after any officer of the Company obtains Knowledge thereof), notice of any default under the Senior Debt Documents, and (ii) except for notices or certificates given to Senior Lenders in connection with borrowings in the ordinary course of business, any other notice, certificate (including borrowing base certificates) or other document or information given to or received from the Senior Lenders and any reports of any Servicer given to the Company or any of its Subsidiaries not later than three (3) Business Days after the date thereof;
(g) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders Purchasers in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a)6.1;
(vih) At least ten (10) Business Days prior to the effectiveness of any material change in or amendment to the Credit and Collection Policy, a copy of the Credit and Collection Policy then in effect and a notice indicating such change or amendment;
(i) When available, (Ai) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (Bii) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its SubsidiariesRepresenting Parties;
(viij) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viiik) PromptlyAs soon as practicable, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence copies of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, all written notices given or prospects of received by the Company or any of its subsidiaries as Subsidiaries with respect to any Capital Stock of such Person;
(l) Disclosure of losses or casualties required by Section 6.7;
(m) Copies of any and all default notices received under or with respect to any leased location or custodial location where Collateral is located;
(n) Prior to making any amendment of any of the Warrant Holder (or Initial Holder) may request; provided that Senior Debt Documents, the Company shall not provide the Purchasers with at least five (5) Business Days prior written notice of any amendment of any of the Senior Debt Documents;
(o) Within thirty (30) days after the end of each Fiscal Year, a certified copy as of a recent date of the UCC search results of the Company from Office of the Secretary of State of Kansas;
(p) Together with the financial statements delivered pursuant to Section 6.1(c), a current list of Insignificant Subsidiaries, as shall be required certified by the Chief Financial Officer of the Company;
(q) Within five (5) Business Days of the execution of documents related to deliver the establishment of O/C Line or any Over-Collateralization Loan Facility, a copy of the closing checklist and each agreement entered into by the Representing Parties; and
(r) Such information and notices under this Section 10(a) if regarding the Warrant Holder (or Initial Holder) is receiving Representing Parties as the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementPurchasers shall from time to time reasonably request.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty (30) 120 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including Year (commencing with the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarterended December 31, and unaudited consolidated 2016), balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and shareholders equity for such Fiscal Year, on consolidated and consolidating bases for Holdings, Borrowers and Subsidiaries, which consolidated statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP audited and certified (except for normal adjustments without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and accruals and the lack of footnotes and other presentation items) consistent with past practiceacceptable to Agent, and certified as accurate by the Chief Financial Officer of the Company, and (B) shall set forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected the figures for such periods Fiscal Year set forth in the projections most recently delivered pursuant to Section 10(a)(iv)10.1.2(e) and other information acceptable to Agent; provided, together that notwithstanding the foregoing, Borrowers shall have until June 30, 2017 to deliver the foregoing financials with a written report (or respect to the Fiscal Year ended December 31, 2016 and such SEC Report which financials shall contain the same information) providing explanations of any material variances be prepared for Hydrofarm and any material variances in connection with the Projections covering such Fiscal Quarterits Subsidiaries;
(iiib) Within ninety (90) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Year), (A) audited consolidated statements of incomecommencing with the month ended March 31, retained earnings and cash flows of the Company for such year2017, and consolidated unaudited balance sheets of the Company as of the end of such yearfiscal month and the related statements of income and cash flow for such fiscal month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Holdings, Borrowers and Subsidiaries, setting forth in each case, in comparative form, form corresponding figures for the period covered preceding Fiscal Year and the figures for such Fiscal Year set forth in the projections most recently delivered pursuant to Section 10.1.2(e) and certified pursuant to clause (c) below by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP presenting the financial position, position and results of operations for such fiscal month and period, subject to normal year-end adjustments and the absence of footnotes;
(c) concurrently with delivery of financial statements of cash flows of under clauses (a) and (b) above (to the Company and its consolidated Subsidiaries on a consolidated basis, as at extent such fiscal month coincides with the end of such a Fiscal Year;
(iv) As soon as practicable and Quarter), or more frequently if requested by Agent while a Financial Covenant Trigger Period is in any event before November 30 of each yeareffect, a Budget Compliance Certificate executed by the chief financial officer of Borrower Agent (it being understood and Projections for each month of the next succeeding fiscal year (including agreed that a statement of underlying assumptions) for the Company, in the same format as the financial statements provided Compliance Certificate is required to be delivered pursuant to Section 10(a)(ithis clause (c) and Section 10(a)(iiregardless of whether a Financial Covenant Trigger Period is in effect);
(vd) If the Company shall otherwise prepare or have available concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant material reports or written communications submitted to the Company or any of its Subsidiaries Borrowers by its their accountants in connection with each annual, interim or special audit or review of any type of the such financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesstatements;
(viie) Promptlynot later than thirty days after the start of each Fiscal Year, with copies projections of all amendments, consent letters, waivers or modifications to, Holdings’ and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionBorrowers’ consolidated balance sheets, results of operations, or prospects cash flow and Availability for the next Fiscal Year, fiscal month by fiscal month, together with a statement of all underlying assumptions, and promptly following the preparation thereof, updates to any of the Company foregoing from time to time prepared by management of any Obligor;
(f) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(g) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Borrower or any other Obligor has made generally available to its shareholders; copies of its subsidiaries as any regular, periodic and special reports or registration statements or prospectuses that any Borrower or any other Obligor files with the Warrant Holder Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower or any other Obligor to the public concerning material changes to or developments in the business of such Obligor;
(h) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(i) concurrently with delivery of financial statements under clauses (a) and, for the fiscal months ending any Fiscal Quarter, (b) above, a management report, in reasonable detail, signed by the chief financial officer of the Borrower Agent, describing the operations and financial condition of the Obligors and their Subsidiaries for the fiscal month and the portion of the Fiscal Year then ended (or Initial Holderfor the Fiscal Year then ended in the case of annual financial statements), together with a discussion comparing such results as compared to the applicable figures for such period set forth in the projections most recently delivered pursuant to Section 10.1.2(e);
(j) promptly upon any officer of any Obligor obtaining knowledge that any Obligor has either (i) registered any Intellectual Property with any Governmental Authority or (ii) acquired any interest in real property (including leasehold interests in real property), a certificate of a Senior Officer describing such Intellectual Property and/or such real property in such detail as Agent shall reasonably require;
(k) such other reports and information (financial or otherwise) as Agent may request; provided that request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business;
(l) not later than five (5) Business Days after receipt thereof by any Obligor or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture, loan or credit or similar agreement (including, without limitation, the Company shall not be required Term Loan Documents) and, from time to deliver time upon request by Agent, such information and notices under this Section 10(areports regarding such instruments, indentures and loan and credit and similar agreements as Agent may reasonably request;
(m) if promptly after the Warrant Holder sending or filing thereof, any certifications or other documents (including any exhibits or Initial Holderother backup thereto) is receiving regarding the same information and notices as a Purchaser post-closing settlement or other “true-up” of consideration paid under the Note and Warrant Purchase Agreement;
(n) promptly upon the completion thereof, any third-party audit or other review of the Closing Date balance sheet of the Obligors; and
(o) as soon as available, and in any event within 120 days after the close of each Fiscal Year, financial statements for each Guarantor, in form and substance satisfactory to Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Hydrofarm Holdings Group, Inc.)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout reflecting all financial transactions; and furnish to Agent and Lenders (provided that the periods covered in which full Parent’s public filing of any such financial statements or reports with the SEC shall constitute delivery of such financial statements or reports to the Agent and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:Lenders):
(ia) As as soon as practicable available, and in any event within thirty (30) 90 days after the end close of each monthFiscal Year, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited a consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments Parent and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company its Subsidiaries as of the end of such Fiscal QuarterYear and the related consolidated statements of income, all cash flow and shareholders equity of the Parent for such Fiscal Year, which consolidated statements and balance sheets shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Parent and acceptable to Agent, and shall set forth in reasonable detailcomparative form corresponding figures for the preceding Fiscal Year;
(b) as soon as available, and in any event within 45 days after the end of each calendar quarter, a compiled consolidated balance sheet of the Parent and its Subsidiaries as of the end of such month and the related consolidated statements of income and cash flow of the Parent and its Subsidiaries for such month and for the portion of the Fiscal Year then elapsed, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP (except and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and accruals and the lack absence of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarterfootnotes;
(iiic) Within ninety concurrently with delivery of financial statements under clauses (90a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Company;
(d) [reserved];
(e) not more than 90 days following the commencement of each calendar year, projections of Borrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month;
(f) as soon as available, and in any event within 10 days of the expiration of any State License (as such term is defined in the Rider) or any Local Regulatory Permit (as defined in the Rider), evidence of the renewal thereof in respect of any Eligible Leasing Real Property;
(g) [Reserved];
(h) [Reserved];
(i) within a reasonable period of time (taking into account the nature of the information and/or report requested, the degree of difficulty of obtaining such information or producing such report and such Obligor’s access to such information if held by or disclosure thereof is controlled by any Person other than an Obligor or Subsidiary thereof), such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in respect of the Collateral or any Obligor’s financial condition or business to the extent such Obligor is not prohibited from disclosing such information to the Agent by the terms of any confidentiality agreement in effect between an Obligor and any other Person that is not an Affiliate of an Obligor, provided that in any such case, the Borrowers will use their commercially reasonable efforts to obtain approval to share such information with Agent, and after the Closing Date, Borrowers agree to use commercially reasonable efforts to not enter into confidentiality agreements with any Person that would prohibit Borrowers from disclosing the information described in this Section 10.1.2(i);
(j) [Reserved];
(k) [Reserved];
(l) as soon as available, and in any event within 30 days of the end of each month, a Borrowing Base Report in form and substance acceptable to Agent calculating the Borrowing Base, certified by the CFO or other authorized individual, of Company;
(m) [Reserved]; and
(n) as soon as available, and in any event within 90 days of the end of each Fiscal Year, (A) audited consolidated statements of incomemeasured annually, retained earnings and cash flows of financial reporting for tenants or at minimum property level financial reporting for all non-public tenants as required per the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared Lease in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementEligible Leasing Real Property.
Appears in 1 contract
Sources: Loan and Security Agreement (NewLake Capital Partners, Inc.)
Financial and Other Information. The Company will keepIn addition to any reports required to be provided under the Indenture, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause deliver to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesP▇▇▇ ▇▇▇▇▇ and Blackstone in the form provided under the Lenders’ Forbearance Agreement:
(i) As on Wednesday (or the immediately succeeding Business Day if Wednesday is not a Business Day) of each week (commencing with the first Wednesday following the effectiveness hereof) a rolling 13-week consolidated cash flow forecast, in the form delivered to the lenders (or their advisors) party to the Lenders’ Forbearance Agreement (the “13-Week Cash Flow Forecast”). Each delivery of the 13-Week Cash Flow Forecast shall be deemed to be a representation by the Company that such 13-Week Cash Flow Forecast has been prepared based upon good faith estimates and assumptions that the Company believes were reasonable at the time made (it being understood and agreed that such 13-Week Cash Flow Forecast is not to be viewed as a fact and that actual results during the period or periods covered thereby may differ from such projected results) and shall be accompanied by a certification of the chief financial officer or such other financial officer that is a Responsible Officer (as defined in the Lenders’ Forbearance Agreement) that such 13-Week Cash Flow Forecast has been prepared based upon good faith estimates and assumptions that the Company believes were reasonable at the time made (it being understood that such 13-Week Cash Flow Forecast is not to be viewed as fact and that actual results during the period or periods covered thereby may differ from such projected results);
(ii) on Wednesday (or the immediately succeeding Business Day if Wednesday is not a Business Day) of each week (commencing with the first Wednesday following the effectiveness hereof), a variance report showing on a line item basis the percentage and dollar variance of actual cash disbursements and cash receipts for the prior week from the amounts set forth for such week in the applicable 13-Week Cash Flow Forecast; and
(iii) as soon as practicable available and in any event within thirty twenty-five (3025) days after the end of each monthmonth ending after the Forbearance Effective Date (as defined below), including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals month and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) related unaudited consolidated statements of income, retained earnings stockholders’ equity and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at for such month and for the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month portion of the next succeeding Company’s Fiscal Year then elapsed, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year (including a statement of underlying assumptions) for and the Company, corresponding figures set forth in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies Long Term Business Plan (as applicabledefined in the Lenders’ Forbearance Agreement), together with a CFO Certification and MD&A (as defined in the Lenders’ Forbearance Agreement) with any financial information not otherwise provided for herein, they shall also furnish the same respect to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementforegoing.
Appears in 1 contract
Sources: Forbearance Agreement (Simmons Co)
Financial and Other Information. The Company will keep, In addition to the financial statements and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause other reports required to be furnished provided under the Credit Agreement, the Borrower shall deliver to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesthe Administrative Agent:
(i) As on Wednesday (or the immediately succeeding Business Day if Wednesday is not a Business Day) of each week (commencing with the week of March 9, 2009), a rolling 13-week consolidated cash flow forecast of the Borrower and its Restricted Subsidiaries, in the form set forth on Exhibit C (the “13-Week Cash Flow Forecast”), with each delivery of the 13-Week Cash Flow Forecast to be deemed to be a representation by the Borrower that such 13-Week Cash Flow Forecast has been prepared based upon good faith estimates and assumptions that the Borrower believes were reasonable at the time made (it being understood and agreed that such 13-Week Cash Flow Forecast is not to be viewed as fact and that actual results during the period or periods covered thereby may differ from such projected results) and to be accompanied by a certification of the chief financial officer or such other financial officer that is a Responsible Officer that such 13-Week Cash Flow Forecast has been prepared based upon good faith estimates and assumptions that the Borrower believes were reasonable at the time made (it being understood and agreed that such 13-Week Cash Flow Forecast is not to be viewed as fact and that actual results during the period or periods covered thereby may differ from such projected results);
(ii) on Wednesday (or the immediately succeeding Business Day if Wednesday is not a Business Day) of each week (commencing with the week of March 9, 2009), a variance report showing on a line item basis the percentage and dollar variance of actual cash disbursements and cash receipts for the prior week from the amounts set forth for such week in the applicable 13-Week Cash Flow Forecast; and
(iii) as soon as practicable available and in any event within thirty (30) days (or, in the case of the MD&A referred to below, forty (40) days) after the end of each monthmonth ending after the Forbearance Effective Date, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company Borrower and its Restricted Subsidiaries as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals month and the lack related unaudited consolidated statements of footnotes income of the Borrower and other presentation items) consistent with past practiceits Restricted Subsidiaries for such month and for the portion of the Borrower’s fiscal year then elapsed, (B) setting forth in respect of the consolidated statements of income in comparative form, form the corresponding figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts commencing with the financial statements for the month ended February 28, 2009, the corresponding projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods income set forth in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)Long-Term Business Plan, together with a written report (or such SEC Report which shall contain CAO Certification and, with respect to the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end last month of each Fiscal Yearfiscal quarter, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope MD&A with respect to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementforegoing.
Appears in 1 contract
Sources: Forbearance Agreement; Waiver; And First Amendment to the Credit Agreement (Station Casinos Inc)
Financial and Other Information. The Company will keep(a) PFSweb agrees that, for so long as Daisytek International is required to consolidate PFSweb's results of operations and will cause financial position or to account for its Subsidiaries to keep, proper books investment in PFSweb under the equity method of record and account accounting (determined in accordance with GAAP generally accepted accounting principles consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:applied):
(i) PFSweb shall, and shall cause each of its Subsidiaries to, maintain a system of internal accounting controls that will provide reasonable assurance that: (A) PFSweb's and such Subsidiaries' books, records and accounts fairly reflect all transactions and dispositions of assets and (B) the specific objectives of accounting control are achieved.
(ii) PFSweb shall, and shall cause each of its Subsidiaries to, maintain a fiscal year which commences on April 1 and ends on March 31 of each calendar year.
(iii) PFSweb shall deliver to Daisytek International a trial balance submission, which shall include amounts relating to each of its Subsidiaries, in such format and detail as Daisytek International may request, as promptly as practicable following the last day of each month.
(iv) As soon as practicable and in any event within thirty (30) days practicable, after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared first three fiscal quarters in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding each fiscal year of PFSweb and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including such fiscal year, PFSweb shall deliver to Daisytek International a consolidated income statement and balance sheet for PFSweb and its Subsidiaries for such fiscal quarter or year, as the fourth case may be.
(4thv) Fiscal QuarterAs soon as practicable, and in any event no later than three days before PFSweb intends to file its Quarterly Financial Statements (as defined below) with the SEC, PFSweb shall deliver to Daisytek International as final as possible drafts of (A) unaudited the consolidated financial statements of income, retained earnings PFSweb and cash flows of the Company its Subsidiaries (and notes thereto) for such quarter periods and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterquarter, setting forth in each case in comparative form for each such fiscal quarter of PFSweb the consolidated figures (and unaudited consolidated balance sheets notes thereto) for the corresponding quarter and periods of the Company as of the end of such Fiscal Quarter, previous fiscal year and all of which statements and balance sheets shall be in reasonable detail, detail and prepared in accordance with GAAP (except for normal adjustments and accruals and the lack Article 10 of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the CompanyRegulation S-X, and (B) a discussion and analysis by management of PFSweb's and its Subsidiaries' financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material adverse change, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." If requested by Daisytek International, together with the delivery of the Quarterly Financial Statements, PFSweb shall deliver to Daisytek International a certificate of the chief financial officer of PFSweb to the effect that the Quarterly Financial Statements present fairly, in all material respects, the financial condition and results of operations of PFSweb and its Subsidiaries as of and for the periods presented therein; provided that PFSweb may continue to revise such Quarterly Financial Statements prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by PFSweb to Daisytek International as soon as practicable thereafter; and, provided, further, that Daisytek International and PFSweb financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which PFSweb may consider making to its Quarterly Financial Statements and related disclosures during the period prior to any anticipated filing with the SEC, and PFSweb shall obtain Daisytek International's consent prior to making any change to PFSweb's Quarterly Financial Statements or related disclosures which would have an effect upon Daisytek International's financial statements or related disclosures. In addition to the foregoing, no Quarterly Financial Statement or any other document which refers, or contains information with respect, to the ownership of PFSweb by Daisytek, the separation of PFSweb from Daisytek International or the Distribution shall be filed with the SEC or otherwise made public by PFSweb or any of its Subsidiaries without the prior written consent of Daisytek International.
(vi) As soon as practicable, and in any event no later than five days before PFSweb intends to file its Annual Financial Statements (as defined below) with the SEC, PFSweb shall deliver to Daisytek International as final as possible drafts of (A) the consolidated financial statements of PFSweb and its Subsidiaries (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such fiscal year, setting forth in each case in comparative form, form for each such fiscal year of PFSweb the consolidated figures for the actual results (and notes thereto) for the corresponding periods period of the previous fiscal year and all in the immediately preceding Fiscal Year reasonable detail and amounts projected prepared in accordance with Article 10 of Regulation S-X, and (B) a discussion and analysis by management of PFSweb's and its Subsidiaries' financial condition and results of operations for such periods pursuant fiscal year, including, without limitation, an explanation of any material adverse change, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to Section 10(a)(iv)as the "Annual Financial Statements." If requested by Daisytek International, together with the delivery of the Annual Financial Statements, PFSweb shall deliver to Daisytek International a written report certificate of the chief financial officer of PFSweb to the effect that the Annual Financial Statements present fairly, in all material respects, the financial condition and results of operations of PFSweb and its Subsidiaries as of and for the periods presented therein; provided that PFSweb may continue to revise such Annual Financial Statements prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by PFSweb to Daisytek International as soon as practicable thereafter; and, provided, further, that Daisytek International and PFSweb financial representatives shall actively consult with each other regarding any changes (whether or such SEC Report not substantive) which shall contain PFSweb may consider making to its Annual Financial Statements and related disclosures during the same information) providing explanations of period prior to any material variances and any material variances in connection anticipated filing with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) SEC, and PFSweb shall obtain Daisytek International's consent prior to making any change to PFSweb's Annual Financial Statements or related disclosures which would have an effect upon Daisytek International's financial statements or related disclosures. In addition to the foregoing, no Annual Financial Statement or any other document which refers, or contains information with respect, to the ownership of PFSweb by Daisytek, the separation of PFSweb from Daisytek International or the Distribution shall be filed with the SEC or otherwise made public by PFSweb or any of its Subsidiaries without the prior written consent of Daisytek International. In any event, PFSweb shall deliver to Daisytek International, no later than 80 days after the end of each Fiscal Yearfiscal year of PFSweb, (A) audited consolidated statements of income, retained earnings and cash flows the final form of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered Annual Financial Statements accompanied by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared an opinion thereon by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of PFSweb's independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;.
(vii) PromptlyPFSweb shall deliver to Daisytek International all Quarterly and Annual Financial Statements of each Subsidiary of PFSweb which is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available, with copies such financial statements to be provided in the same manner and detail and on the same time schedule as those financial statements of all amendments, consent letters, waivers or modifications to, PFSweb required to be delivered to Daisytek International pursuant to this Section 5.1.
(viii) PFSweb and any material notices or reports provided by any Person to the Company or any each of its Subsidiaries pursuant which files information with the SEC shall deliver to Daisytek International: (A) as soon as the terms of same are prepared, substantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or made available by the Company PFSweb or any of its Subsidiaries to their security holders, (y) all regular, periodic and other reports to be filed under Sections 13, 14 and 15 of the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and (z) all registration statements and prospectuses to be filed by PFSweb or any of its Subsidiaries with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such Person;
exchange (viiicollectively, the documents identified in clauses (x), (y) Promptlyand (z) are referred to herein as "PFSweb Public Documents"), upon obtaining knowledge thereofand (B) as soon as practicable, but in no event less later than 5 four Business Days prior to the occurrence date the same are printed, sent or filed, whichever is earliest, final copies of any Put Eventall such PFSweb Public Documents; provided that PFSweb may continue to revise such PFSweb Public Documents prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by PFSweb to Daisytek International as soon as practicable thereafter; and, provided, further, that Daisytek International and PFSweb financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which PFSweb may consider making to any of its PFSweb Public Documents and related disclosures prior to any anticipated filing with the SEC, and PFSweb shall obtain Daisytek International's consent prior to making any change to its PFSweb Public Documents or related disclosures which would have an effect upon Daisytek International's financial statements or related disclosures. In addition to the foregoing, no PFSweb Public Document or any other document which refers, or contains information with respect, to the ownership of PFSweb by Daisytek, the separation of PFSweb from Daisytek International or the Distribution shall be filed with the SEC or otherwise made public by PFSweb or any of its Subsidiaries without the prior written consent of Daisytek International.
(ix) From PFSweb shall, as promptly as practicable, deliver to Daisytek International copies of all annual and other budgets and financial projections relating to PFSweb or any of its Subsidiaries and shall provide Daisytek International an opportunity to meet with management of PFSweb to discuss such budgets and projections.
(x) With reasonable promptness, PFSweb shall deliver to Daisytek International such additional financial and other information and data with respect to PFSweb and its Subsidiaries and their business, properties, financial positions, results of operations and prospects as from time to timetime may be reasonably requested by Daisytek International.
(xi) Prior to issuance, such additional information regarding PFSweb shall deliver to Daisytek International copies of substantially final drafts of all press releases and other statements to be made available by PFSweb or any of its Subsidiaries to the public concerning material developments in the business, properties, financial positionearnings, results of operations, financial condition or prospects of the Company PFSweb or any of its subsidiaries Subsidiaries or the relationship between (A) PFSweb or any of its Subsidiaries and (B) Daisytek International or any of its Affiliates. In addition, prior to the issuance of any such press release or public statement, PFSweb shall consult with Daisytek International regarding any changes (other than typographical or other similar minor changes) to such substantially final drafts. Immediately following the issuance thereof, PFSweb shall deliver to Daisytek International copies of final drafts of all press releases and other public statements. PFSweb and Daisytek will consult with each other as to the Warrant Holder timing of their annual and quarterly earnings releases and will give each other an opportunity to review the information therein relating to PFSweb and its Subsidiaries and to comment thereon.
(xii) PFSweb shall cooperate fully, and cause its accountants to cooperate fully, with Daisytek International to the extent requested by Daisytek in the preparation of Daisytek International's public earnings releases, quarterly reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by Daisytek International with the SEC, any national securities exchange or Initial Holderotherwise made publicly available (collectively, "Daisytek Public Filings"). PFSweb agrees to provide to Daisytek International all information that it reasonably requests in connection with any Daisytek Public Filings or that, in the judgment of Daisytek International's legal counsel, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. Such information shall be provided by PFSweb in a timely manner on the dates requested by Daisytek International (which may be earlier than the dates on which PFSweb otherwise would be required hereunder to have such information available) may requestto enable Daisytek International to prepare, print and release all Daisytek Public Filings on such dates as Daisytek International shall determine. PFSweb shall use commercially reasonable efforts to cause its accountants to consent to any reference to them as experts in any Daisytek Public Filings required under any law, rule or regulation. If and to the extent requested by Daisytek International, PFSweb shall diligently and promptly review all drafts of such Daisytek Public Filings and prepare in a diligent and timely fashion any portion of such Daisytek Public Filing pertaining to PFSweb. Prior to any printing or public release of any Daisytek Public Filing, an appropriate executive officer of PFSweb shall, if requested by Daisytek international, certify that the information relating to PFSweb, any PFSweb Affiliate or the PFSweb Business in such Daisytek Public Filing is accurate, true and correct in all material respects. Unless required by law, rule or regulation, PFSweb shall not publicly release any financial or other information which conflicts with the information with respect to PFSweb, any PFSweb Affiliate or the PFSweb Business that is included in any Daisytek Public Filing without Daisytek International's prior written consent. Prior to the release or filing thereof, Daisytek International shall provide PFSweb with a draft of any portion of a Daisytek Public Filing containing information relating to PFSweb and its Subsidiaries and shall give PFSweb an opportunity to review such information and comment thereon; provided that Daisytek International shall determine in its sole discretion the Company final form and content of all Daisytek Public Filings.
(b) PFSweb agrees that, for so long as Daisytek International is required to consolidate PFSweb's results of operations and financial position or to account for its investment in PFSweb under the equity method of accounting (in accordance with generally accepted accounting principles):
(i) PFSweb shall not select a different accounting firm to serve as its (and its Subsidiaries') independent certified public accountants ("PFSweb's Auditors") without Daisytek International's prior written consent (which shall not be required unreasonably withheld).
(ii) PFSweb shall use its best efforts to deliver information and notices under this Section 10(a) if enable the Warrant Holder (or Initial Holder) is receiving PFSweb Auditors to complete their audit such that they will date their opinion on PFSweb's audited annual financial statements on the same date that Daisytek International's independent certified public accountants ("Daisytek's Auditors") date their opinion on Daisytek International's audited annual financial statements (the "Daisytek Annual Statements"), and to enable Daisytek International to meet its timetable for the printing, filing and public dissemination of the Daisytek Annual Statements.
(iii) PFSweb shall provide to Daisytek International on a timely basis all information that Daisytek International reasonably requires to meet its schedule for the preparation, printing, filing, and notices as a Purchaser under public dissemination of the Note Daisytek Annual Statements. Without limiting the generality of the foregoing, PFSweb will provide all required financial information with respect to PFSweb and Warrant Purchase Agreement.its Subsidiaries to PFSw
Appears in 1 contract
Sources: Initial Public Offering and Distribution Agreement (Pfsweb Inc)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished furnish to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesMezzanine Investor one copy of each of the following:
(ia) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) 120 days after the end of each Fiscal Year, (Ai) audited consolidated Consolidated balance sheets and Consolidated income statements of income, retained earnings and cash flows showing the financial condition of the Company for and its Subsidiaries as of the close of such Fiscal Year and the results of their operations during such year, and consolidated balance sheets (ii) a Consolidated statement of members’ equity and a Consolidated statement of cash flow, as of the close of such Fiscal Year, all the foregoing financial statements to be audited by a Big 4 or other independent certified public accountants reasonably acceptable to the Majority Holders, and to be in form and substance reasonably acceptable to the Majority Holders;
(b) within 30 days after the end of each fiscal month unaudited Consolidated income statements of the Company and its Subsidiaries and within 60 days after the end of each Fiscal Quarter unaudited Consolidated and consolidating balance sheets and Consolidated and consolidating income statements showing the financial condition and results of operations of the Company and its Subsidiaries as of the end of each such yearquarter, a Consolidated and consolidating statement of members’ equity and a Consolidated and consolidating statement of cash flow as of the end of each such quarter, prepared and certified by an Approved Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries and as having been prepared in accordance with GAAP consistently applied, setting forth in the case of each case, Consolidated statement in comparative form, form the corresponding figures for the corresponding quarter of the preceding year and corresponding figures for the period covered by beginning with the preceding annual audit and as first day of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous current Fiscal Year and any material variances in connection with ending on the Projections covering last day of the relevant Fiscal Quarter and the corresponding period for the previous Fiscal Year, in each case subject to footnotes and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the normal year-end of such Fiscal Yearaudit adjustments;
(ivi) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in promptly after the same format as the financial statements provided pursuant to Section 10(a)(i) become publicly available, copies of such registration statements, annual, periodic and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial other reports, and such proxy statements and other information for the Company and its Subsidiaries on a consolidated basisinformation, or if any, as shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or filed by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior Subsidiary with the SEC pursuant to the occurrence requirements of any Put Eventthe Securities Act or the Exchange Act; and
(ixii) From time to timeas soon as practicable, such additional copies of all material reports, forms, filings and financial information regarding the business, properties, financial position, results of operations, or prospects of submitted by the Company or any of Subsidiary to any other Governmental Authority and all material reports submitted to its subsidiaries as the Warrant Holder interest holders; (or Initial Holderiii) may request; provided that within 5 Business Days after receipt by the Company or any Subsidiary thereof, copies of any exception reports prepared by any Gaming Authority and (iv) within 5 Business Days of filing by the Company or any Subsidiary with any Gaming Authority, copies of any and all reports of borrowings on form 8.130 or its equivalent;
(d) as soon as available, but in any event not later than December 31 of each Fiscal Year, the Company’s annual internal operating budget (which shall not be required to deliver information list with reasonable specificity the Company’s good faith estimate of planned Capital Expenditures of all types whatsoever) for the next Fiscal Year, and notices under this Section 10(a) if as soon as prepared and available any amendments thereof prepared in the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.ordinary course;
Appears in 1 contract
Financial and Other Information. The Company will keepIt shall, unless the affected Financing Party shall otherwise consent in writing, furnish the following to the Borrower and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesAgent:
(i) As soon as practicable and in any event within thirty (30) 90 days after the end of each monthfiscal year of Flowers, including the month of March, June, September audited consolidated balance sheets and December (A) unaudited related consolidated statements of income, retained earnings comprehensive income, shareholders’ equity and cash flows of the Company for such month Flowers and the year-to-date period, and an unaudited its consolidated balance sheet of the Company subsidiaries as of the end of and for such monthfiscal year, prepared setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly the financial condition and results of operations of Flowers and its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for normal adjustments and accruals and consistently applied, provided, that the lack of footnotes and Servicer shall be deemed to have delivered the financial statements referred to in this Section 5.03(e)(i) if such financial statements or other presentation items) consistent with past practice, (B) in comparative form, figures for information have been posted on the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy website of the monthly Credit Review Alert ReportSecurities and Exchange Commission (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) or on the Servicer’s own website as previously identified to the Borrower, the Administrative Agent and each Facility Agent;
(ii) Within forty-five (45) within 60 days after the end of each Fiscal Quarter including of the fourth (4th) Fiscal Quarterfirst three fiscal quarters of each fiscal year of Flowers, (A) unaudited the consolidated balance sheets and related consolidated statements of income, retained earnings comprehensive income, shareholders’ equity and cash flows of the Company for such quarter Flowers and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarterits consolidated subsidiaries, and unaudited consolidated balance sheets of the Company in each case, as of the end of and for such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals fiscal quarter and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer then elapsed portion of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection fiscal year ended with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end last day of such yearquarterly period, setting forth in each case, case in comparative form, corresponding form the figures for the corresponding period covered by the preceding annual audit and as or periods of the previous fiscal year, all certified by a Financial Officer of Flowers as presenting fairly the financial condition and results of operations of Flowers and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, provided, that the Servicer shall be deemed to have delivered the financial statements referred to in this Section 5.03(e)(ii) if such financial statements or other information have been posted on the website of the preceding Fiscal Year, all of which statements Securities and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by Exchange Commission (▇▇▇▇://▇▇▇, .▇▇▇.▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, ) or another respected firm of independent certified public accountants selected by on the Company and reasonably satisfactory Servicer’s own website as previously identified to the Warrant HoldersBorrower, whose opinion shall be unqualified the Administrative Agent and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventFacility Agent; and
(ixiii) From such other information, documents, records or reports respecting the Receivables and the Related Security or the condition or operations, financial or otherwise, of it as the Borrower or any Financing Party may from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may time reasonably request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Receivables Loan, Security and Servicing Agreement (Flowers Foods Inc)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, (a) Holdings and the Company shall cause Borrowers will furnish to be furnished Agent, in form satisfactory to each Warrant Holder the Agent, for so long such Warrant Holder holds any Warrant or Warrant Sharesdistribution, where applicable, to the Lenders:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) 90 days after the end of each Fiscal Quarter including Year of the fourth Company (4th) or within 120 days in the case of the Fiscal QuarterYear ending December 31, (A) unaudited 2008), its consolidated and consolidating balance sheet and related consolidated and consolidating statements of income, retained earnings stockholders’ equity and cash flows, showing the financial condition of the Company and its consolidated Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal QuarterYear, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance together with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year Year, audited, with respect to consolidated financial statements, by KPMG LLP or another independent registered public accounting firm of recognized national standing and amounts projected for accompanied by an opinion of such periods pursuant to Section 10(a)(iv), together with a written report accounting firm (or such SEC Report which shall contain not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end scope of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope audit) to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) effect that such accountants’ comment letter on the Company’s internal consolidated financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements statements fairly present fairly in accordance with GAAP the financial position, condition and results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basisbasis in accordance with GAAP consistently applied;
(ii) within 45 days after the end of each month (or, in the case of the month ending on September 30, 2008, within 60 days after the end of such month), the Company’s consolidated and consolidating balance sheet and related consolidated and consolidating statements of income and cash flows, showing the financial condition of the Company and its consolidated Subsidiaries as of the close of such month and the results of their operations and cash flows for such month and the then elapsed portion of the Fiscal Year, and comparative figures for the same periods in the immediately preceding Fiscal Year, all certified by a Financial Officer of the Company as fairly presenting the financial condition and results of operations and cash flows of the Company and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of certain footnotes;
(iii) concurrently with each delivery of financial statements under clause (i) or (ii) above, a completed certificate signed by a Financial Officer of each of Holdings and the Company, (A) certifying that no Default or Event of Default has occurred or, if a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) stating whether any change in GAAP or in the application thereof has occurred since the date of the consolidated balance sheet of the Company most recently theretofore delivered under clause (i) or (ii) above to the extent such change is applicable to the financial statements delivered under clause (i) or (ii) above, and, if any such change has occurred, specifying the effect of such change on the financial statements (including those for the prior periods) accompanying such certificate, (C) certifying that all notices required to be provided under Sections 10.1.5 and 10.1.10 have been provided and (iv) in the case of any delivery of financial statements under clause (i) above or under clause (ii) above with respect to the last month of a Fiscal Quarter of the Company ending on September 30, 2010 or on June 30 of any year, setting forth reasonably detailed calculations of Excess Cash Flow (as defined in the Term Loan Agreement) for the Sweep Period (as defined in the Term Loan Agreement) ended on such date;
(iv) concurrently with the delivery of the financial statements under clause (ii) above, a Compliance Certificate of a Financial Officer of the Company:
(A) certifying that no Default or Event of Default has occurred or, if a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(B) certifying that (1) all Royalties due and payable under all Licenses and (2) all rent and other amounts due and payable under all leases have, in each case, been paid in full; and
(C) setting forth in reasonable detail (1) the calculations required to establish whether or not a Low Availability Trigger Date occurred during the subject month and whether or not a Low Availability Period should have been instituted during the subject month; (2) the calculations required to establish the Fixed Charge Coverage Ratio for the most recently ended Four-Quarter Period and that the Obligors were in compliance Section 10.2.14 for the year-to-date period ending on the last day of the subject month and (3) the aggregate amount of all Bank Product Debt and a list of all Bank Products as of the end of the subject month.
(v) within 90 days after the end of each Fiscal Year of the Company, a certificate of a Senior Officer of each of Holdings and the Company and, except where it is not reasonably practical to obtain such a report, a report of an independent insurance broker, signed by an officer of such broker, each setting forth the insurance then maintained by or on behalf of Holdings and the Subsidiaries (identifying underwriters, carriers, the type of insurance and the insurance limits) and stating that in their opinion such insurance complies with the terms of Section 10.1.2, together with evidence of payment of the premiums then due thereon;
(vi) within 90 days after the end of each Fiscal Year of the Company, a certificate of a Senior Officer of each of Holdings and the Company setting forth (A) all Equity Interests, debt securities and promissory notes or any other instrument evidencing any such debt securities owned by any Obligor and (B) all commercial tort claims in respect of which a complaint or a counterclaim has been filed by any Obligor and that, in each case, (1) if so owned or filed by a Obligor as of the Closing Date would have been required to be disclosed pursuant to the terms of the Security Documents and (2) have not been set forth on a certificate previously delivered pursuant to this clause;
(vii) no sooner than sixty (60) days and not later than thirty (30) days prior to the beginning of each Fiscal Year, an annual budget (to include forecasted consolidated and consolidating balance sheets, income statements and cash flow statements) for Holdings and its Subsidiaries as at the end of and for each quarter of such Fiscal YearYear and setting forth the assumptions used for purposes of preparing such budget) and, promptly after the same become available, any significant revisions to such budget;
(ivviii) As soon so long as practicable and in average daily Availability for any event before November 30 month is less than $40,000,000, not later than seven days after the end of each yearweek, an operating forecast in form and substance reasonably satisfactory to Agent setting forth the Borrowers’ working capital accounts, including a Budget and Projections for each month detailed calculation of the next succeeding fiscal year (including Borrowing Base and available cash, prepared on a statement of underlying assumptions) daily basis for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii)following two week period;
(vix) If promptly after the receipt thereof by Company or any Subsidiary, a copy of any “management letter” received in final form by any such Person from its independent registered public accounting firm and the management’s response thereto;
(x) promptly after the receipt thereof by Holdings or any Subsidiary, copies of all environmental audits and reports, whether prepared by personnel of Holdings or any Subsidiary or by independent consultants, that relate to any material Environmental Liability at or concerning the ▇▇▇▇▇ Springs Refinery or to any material Environmental Liabilities of Holdings or any Subsidiary;
(xi) promptly after any request therefor by the Agent or any Lender, copies of (A) any documents described in Section 101(k)(1) of ERISA that Holdings or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (B) any notices described in Section 101(l)(1) of ERISA that Holdings or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided, that if Holdings or any of its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Holdings or the applicable ERISA Affiliate shall otherwise prepare promptly make a request for such documents and notices from such administrator or have available financial statements sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(xii) promptly after a request therefor, all documentation and other information for that any Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Company USA Patriot Act;
(xiii) promptly after a request therefor, a certified listing of each Obligor’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;
(xiv) promptly after a request therefor, copies of all existing agreements, and promptly after execution thereof provide Agent with copies of all future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which any material portion of ABL Priority Collateral may be kept or that otherwise may possess or handle any material amount of ABL Priority Collateral or documents or records relating to ABL Priority Collateral;
(xv) if requested by the Agent, a list, certified by an officer of the applicable Obligor, of Holdings’ and each Borrower’s suppliers of Petroleum Product and such information about such suppliers and source of such Inventory as the Agent may reasonably request;
(xvi) notice of any material change in its Subsidiaries accounts payable practices from those in effect on the Closing Date; and
(xvii) promptly after a consolidated basisrequest therefor, such other information regarding the business, assets, liabilities, operations or condition (financial or otherwise) of Holdings or any Subsidiary, or shall provide their Governing Bodies compliance with the terms of any Loan Document, as the Agent or any Lender may reasonably request.
(as applicableb) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries Information required to be furnished pursuant to the foregoing provisions of this Section 10(a);shall be deemed to have been delivered if such information is posted by or on behalf of Borrower Agent on IntraLinks/IntraAgency or another similar website (whether a commercial or third party website or a website sponsored by the Agent) to which each Lender and the Agent have access; provided, that (i) at the request of the Agent, Holdings or the Borrowers shall deliver to the Agent paper copies of any such information and (ii) Holdings or the Borrowers shall notify (which notification may be made by facsimile or electronic mail) the Agent of the posting of any such information and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Agent shall have no obligation to request the delivery of or to maintain copies of any information referred to above, and in any event shall have no responsibility to monitor compliance by Holdings or the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining copies of any such information.
(vic) When availableObligors hereby authorize Agent:
(i) At reasonable times and upon reasonable advance notice and the provision of an opportunity for a representative of Holdings and the Borrower Agent to participate or accompany the Agent, (A) all significant reports or written communications submitted to communicate directly with its and Holdings’ certified public accountants and, by this provision, authorize those accountants to disclose to the Company or Agent any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the and all financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, other supporting financial documents and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports schedules relating to the Company and/or its Obligors and their respective Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to discuss directly with the Company or any Agent the finances and affairs of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventObligors and their respective Subsidiaries; and
(ixii) From to communicate directly with Parent and, if Parent’s public accountants are different from Holdings’ public accountants, with Parent’s certified public accountants, subject to satisfaction of the following conditions: (A) the Agent shall provide written notice of its desire to communicate with Parent’s certified public accountants; (B) Parent shall arrange for a mutually acceptable time to timeand, if necessary, place for any such communications, such additional information regarding date to be not greater than seven Business Days following any such written notice to Parent under clause (A) above, or, if such certified public accountants are not available until some time following seven Business Days, on the business, properties, financial position, results first date on which such accountants are available; and (C) a representative of operations, Parent shall be permitted to participate or prospects of accompany the Company or Agent in connection with any of its subsidiaries as the Warrant Holder (or Initial Holder) may requestsuch communications; provided that if Parent fails to arrange any such meeting, the Company shall not be required Agent may contact Parent’s accountant’s directly. The Obligors hereby direct Parent to deliver information provide the Agent with access in accordance with the foregoing to Parent’s certified public accountants and notices under this Section 10(a) if authorize those accountants to disclose to the Warrant Holder (or Initial Holder) is receiving Agent any and all financial statements and other supporting financial documents and schedules relating to Parent to the same information extent affecting Holdings, the Obligors and notices as a Purchaser under their respective Subsidiaries, and to discuss directly with the Note Agent the finances and Warrant Purchase Agreementaffairs of Parent to the extent affecting Holdings, the Obligors and their respective Subsidiaries.
Appears in 1 contract
Sources: Loan and Security Agreement (Alon USA Energy, Inc.)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings Provide or transactions relating to their business and affairs, and the Company shall cause to be furnished provided to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLender, at its address set forth in Section 8.7, the following financial statements and information on a continuing basis during the term of the Loan:
(ia) As soon as practicable and in any event within thirty Within ninety (3090) days after the end of each monthfiscal year of the Facility, including Borrower and Lessee (if different from the month of MarchFacility), June, September and December (A) unaudited consolidated financial statements of incomesuch entities, retained earnings and cash flows prepared by an officer of the Company for such month and the year-to-date periodapplicable entity in accordance with GAAP, and an unaudited consolidated balance sheet of the Company as of the end of certified by such monthofficer, which statements shall be prepared in accordance with GAAP GAAP, and shall include a balance sheet and a statement of income and expenses for the year then ended, and shall be certified as true and correct by a financial officer of Borrower or Manager (except for normal adjustments and accruals and as applicable).
(b) Within one hundred twenty (120) days after the lack end of footnotes and other presentation items) consistent with past practiceeach calendar year, (Bi) unaudited financial statements of Guarantor, which shall be in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv)form as Lender shall reasonably approve, and shall be certified as true and correct by Guarantor and (iiiii) a copy of the monthly Credit Review Alert Report;Annual Financial Report (as defined in the Management Agreement) received by Borrower or Lessee from Manager; provided, however, it shall not be a default by Borrower hereunder if Borrower fails to deliver to Lender the Annual Financial Report due to Manager’s failure to deliver the same as required under the Management Agreement. .
(iic) Within forty-five (45) days after the end of each Fiscal Quarter including quarter following such time as the fourth (4th) Fiscal QuarterFacility opens for business, (A) unaudited consolidated interim financial statements of income, retained earnings and cash flows the operations of the Company for such quarter Facility, certified as true and for the period from the beginning correct by a financial officer of the then current Fiscal Year to the end of such Fiscal QuarterBorrower, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterLessee, all of which statements and balance sheets shall be in reasonable detailor Manager, prepared in accordance with GAAP (except for normal adjustments GAAP, which statements shall include a balance sheet and accruals statement of income and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures expenses for the actual results month then ended and for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant fiscal year to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;date.
(iiid) Within ninety forty-five (9045) days after the end of each Fiscal Yearquarter following such time as the Facility opens for business, (A) audited consolidated statements of income, retained earnings and cash flows a statement of the Company number of unit days available and the actual unit days incurred for such yearquarter, and consolidated balance sheets as well as a statement of the Company number of resident days available and the actual resident days incurred for such quarter, together with quarterly census information of the Facility as of the end of such yearquarter in sufficient detail to show resident -mix (i.e., setting forth in each caseprivate, in comparative formMedicare, corresponding figures Medicaid, and V.A.) on a daily average basis for such year through the period covered end of such quarter, certified by the preceding annual chief financial officer of Borrower, Lessee, or Manager to be true and correct.
(e) If requested by Lender, within thirty (30) days after the filing deadline, as may be extended from time to time, copies of all federal, state and local tax returns, as applicable, of Borrower, Lessee and Guarantor, together with all supporting documentation and required schedules.
(f) If and to the extent hereafter applicable, within ten (10) days after filing or receipt, all Medicaid cost reports and any amendments thereto filed with respect to the Facility and all responses, audit reports, or other inquiries with respect to such cost reports.
(g) If and as to the extent hereafter applicable, within ten (10) days after receipt, copies of all licensure and certification survey reports and statements of deficiencies (with plans of correction attached thereto).
(h) If and to the extent hereafter applicable, within ten (10) days after receipt, a copy of the “Medicaid Rate Calculation Worksheet” (or the equivalent thereof) from the applicable agency.
(i) If and to the extent hereafter applicable, within ten (10) days of receipt, a statement of the number of resident days for which the Facility has received the Medicare default rate for any applicable period. For purposes herein, “default rate” shall have the meaning ascribed to it in that certain applicable Medicare rate notification letter prepared in connection with any review or survey of the Facility.
(j) Within three (3) days after receipt, any and all notices (regardless of form) from any and all licensing and/or certifying agencies, including but not limited to, that the Facility’s license is being downgraded to a substandard category, revoked or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke or suspend the Facility’s license or certification.
(k) If requested by Lender, evidence of payment by Borrower, Lessee, or Manager of any applicable provider bed taxes or similar taxes, which taxes Borrower, Lessee, or Manager agrees to pay.
(l) Within one hundred twenty (120) days after the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the CompanyFacility’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yearfiscal year, and more frequently, if reasonably requested by Lender (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less more often than 5 Business Days prior twice during any calendar year), an aged accounts receivable report for the Facility in sufficient detail to show amounts due from each class of resident-mix, if applicable (i.e., private, Medicare, Medicaid and V.A.), by the occurrence account age classifications of any Put Event; and
30 days, 60 days, 90 days, 120 days, and over 120 days. Lender reserves the right to require that the annual and/or quarterly financial statements of Borrower, Guarantor and Lessee be audited and prepared by a nationally recognized accounting firm or independent certified public accounting firm acceptable to Lender, at their respective sole cost and expense, if (ixi) From an Event of Default exists, or (ii) if Lender has reasonable grounds to believe that the unaudited financial statements do not accurately represent the financial condition of Borrower, Guarantor or Lessee as the case may be. Lender further reserves the right to require such other financial information of Borrower, Guarantor, Lessee, Manager, and/or the Facility, at such other times (including monthly or more frequently) as it shall deem necessary. All financial statements must be in the form and detail as Lender shall from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may time request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(i) As as soon as practicable available, and in any event within thirty (30) 150 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal QuarterYear occurring on or before December 31, (A) unaudited consolidated statements of income, retained earnings 2018 and cash flows of the Company 120 days for such quarter and for the period from the beginning of the then current each Fiscal Year to the end of such Fiscal Quarterthereafter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and shareholders equity for such Fiscal Year, on consolidated and consolidating bases for Holdings, Borrowers and Subsidiaries, which consolidated statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP audited and certified (except for normal adjustments without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and accruals and the lack of footnotes and other presentation items) consistent with past practiceacceptable to Agent, and certified as accurate by the Chief Financial Officer of the Company, and (B) shall set forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected the figures for such periods Fiscal Year set forth in the projections most recently delivered pursuant to Section 10(a)(iv)10.1.(b)(v) and other information acceptable to Agent; provided, together that notwithstanding the foregoing, Borrowers shall have until June 30, 2017 to deliver the foregoing financials with a written report (or respect to the Fiscal Year ended December 31, 2016 and such SEC Report which financials shall contain the same information) providing explanations of any material variances be prepared for Hydrofarm and any material variances in connection with the Projections covering such Fiscal Quarterits Subsidiaries;
(iiiii) Within ninety (90) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Year), (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated unaudited balance sheets of the Company as of the end of such yearfiscal month and the related statements of income and cash flow for such fiscal month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Holdings, Borrowers and Subsidiaries (provided, that during the initial 90 days after the Closing Date, such financial statements shall not be consolidated to include GSD, Eddi and EWGS and such entities shall provide separate financial statements otherwise in accordance with this clause (ii)), setting forth in each case, in comparative form, form corresponding figures for the period covered preceding Fiscal Year and the figures for such Fiscal Year set forth in the projections most recently delivered pursuant to Section 10.1(b)(v) and certified pursuant to clause (iii) below by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP presenting the financial position, position and results of operations for such fiscal month and period, subject to normal year-end adjustments and the absence of footnotes;
(iii) concurrently with delivery of financial statements of cash flows of under clauses (i) and (ii) above (to the Company and its consolidated Subsidiaries on a consolidated basis, as at extent such fiscal month coincides with the end of such a Fiscal YearQuarter), or more frequently if requested by Agent while a Financial Covenant Trigger Period is in effect, a Compliance Certificate executed by the chief financial officer of Borrower Agent (it being understood and agreed that a Compliance Certificate is required to be delivered pursuant to this clause (iii) regardless of whether a Financial Covenant Trigger Period is in effect);
(iv) As soon as practicable and in any event before November 30 concurrently with delivery of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant under clause (a) above, copies of all management letters and other material reports submitted to Section 10(a)(i) and Section 10(a)(ii)Borrowers by their accountants in connection with such financial statements;
(v) If not later than thirty days after the Company shall otherwise prepare or have available financial statements start of each Fiscal Year, projections of Holdings’ and other information the Borrowers’ consolidated balance sheets, results of operations, cash flow, Canadian Availability and U.S. Availability for the Company next Fiscal Year, fiscal month by fiscal month, together with a statement of all underlying assumptions, and its Subsidiaries on a consolidated basispromptly following the preparation thereof, or shall provide their Governing Bodies (as applicable) with updates to any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to of the foregoing provisions from time to time prepared by management of this Section 10(a)any Obligor;
(vi) When availableat Agent’s request, (A) all significant reports or written communications submitted to a listing of each Borrower’s trade payables, specifying the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management trade creditor and all responses theretobalance due, and (B) unless disclosed a detailed trade payable aging, all in SEC Reports, acquisition analyses for material acquisitions, presentations form satisfactory to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its SubsidiariesAgent;
(vii) Promptlypromptly after the sending or filing thereof, with copies of all amendmentsany proxy statements, consent letters, waivers or modifications to, and any material notices financial statements or reports provided that any Borrower or any other Obligor has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower or any other Obligor files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower or any Person other Obligor to the Company public concerning material changes to or any developments in the business of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such PersonObligor;
(viii) Promptlypromptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;
(ix) concurrently with delivery of financial statements under clauses (i) and, for the fiscal months ending any Fiscal Quarter, (ii) above, a management report, in reasonable detail, signed by the chief financial officer of the Borrower Agent, describing the operations and financial condition of the Obligors and their Subsidiaries for the fiscal month and the portion of the Fiscal Year then ended (or for the Fiscal Year then ended in the case of annual financial statements), together with a discussion comparing such results as compared to the applicable figures for such period set forth in the projections most recently delivered pursuant to
Section 10.1 (b)(v);
(x) promptly upon any officer of any Obligor obtaining knowledge that any Obligor has either (A) registered any Intellectual Property with any Governmental Authority or (B) acquired any interest in real property (including leasehold interests in real property), a certificate of a Senior Officer describing such Intellectual Property and/or such real property in such detail as Agent shall reasonably require;
(xi) promptly after the sending or filing thereof, but copies of any annual information report (including all actuarial reports and other schedules and attachments thereto) required to be filed with a Governmental Authority in no event less connection with each Pension Plan, Canadian Pension Plan or any Foreign Plan that is required by Applicable Law to be funded; promptly upon receipt, copies of any notice, demand, inquiry or subpoena received in connection with any Pension Plan or Canadian Pension Plan from a Governmental Authority (other than 5 routine inquiries in the course of application for a favourable IRS determination letter); and at Agent’s request, copies of any annual report required to be filed with a Governmental Authority in connection with any other Pension Plan or Canadian Pension Plan;
(xii) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business;
(xiii) not later than five (5) Business Days prior after receipt thereof by any Obligor or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture, loan or credit or similar agreement (including, without limitation, the occurrence Term Loan Documents) and, from time to time upon request by Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as Agent may reasonably request;
(xiv) promptly after the sending or filing thereof, any certifications or other documents (including any exhibits or other backup thereto) regarding the post-closing settlement or other “true-up” of consideration paid under the Existing Purchase Agreement or Purchase Agreements;
(xv) promptly upon the completion thereof, any Put Eventthird-party audit or other review of the Initial Closing Date balance sheet of the Obligors; and
(ixxvi) From time to timeas soon as available, such additional information regarding and in any event within 120 days after the business, propertiesclose of each Fiscal Year, financial positionstatements for each Guarantor, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required in form and substance satisfactory to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Hydrofarm Holdings Group, Inc.)
Financial and Other Information. (a) The Company will keepagrees to furnish to TMI Sub, MSV Investors and Motient Sub, and will cause following the Second Transaction, the Roll-up Entity and Motient Sub, for so long as such Stockholder is required to account for its Subsidiaries to keep, proper books investment in the Company on a consolidated basis or under the equity method of record and account accounting (determined in accordance with GAAP generally accepted accounting principles in the United States ("GAAP") consistently applied throughout applied), the periods covered in which full following financial statements and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesother information:
(i) As as soon as practicable available, and in any event within thirty (30) 30 days after the end of each calendar month, including copies of the month of March, June, September and December (A) unaudited consolidated and consolidating statements of income, income and retained earnings and cash flows of the Company for such month and for the year-to-date period, and an unaudited consolidated balance sheet portion of the Company fiscal year then ended, all in reasonable detail, all certified by the Company's chief financial officer as of complete and correct and as presenting fairly the end of such month, prepared information contained therein in accordance with GAAP GAAP, subject to (except for normal adjustments and accruals and the lack of footnotes and other presentation itemsx) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and recurring non-material changes resulting from year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv)end audit adjustments, and (iiiy) a copy absence of the monthly Credit Review Alert Reportnotes required by GAAP;
(ii) Within fortyas soon as available, and in any event no later than 10 days prior to each date which is the earliest date on which a Stockholder is required to file a Quarterly Report on Form 10-five (45Q under Section 13(a) days after or 15(d) of the end Exchange Act for each of the first, second and third quarterly accounting periods in each Fiscal Quarter including fiscal year of the fourth (4th) Fiscal QuarterCompany, (A) copies of the unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated consolidating balance sheets of the Company as of the end of such Fiscal Quarterquarterly accounting period, and of the related consolidated and consolidating statements of income and retained earnings and cash flows for such accounting period and for the portion of the fiscal year then ended, all of which statements and balance sheets shall be in reasonable detaildetail and stating in comparative form the unaudited consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year, prepared all certified by the Company's chief financial officer as complete and correct and as presenting fairly the information contained therein in accordance with GAAP GAAP, subject to (except for normal x) recurring non-material changes resulting from year-end audit adjustments and accruals and the lack of footnotes and other presentation items(y) consistent with past practice, and certified as accurate by the Chief Financial Officer absence of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarternotes required by GAAP;
(iii) Within ninety (90as soon as available and in any event no later than 15 days prior to each date which is the earliest date on which a Stockholder is required to file an Annual Report on Form 10-K under Section 13(a) days after or 15(d) of the end Exchange Act for the each fiscal year of each Fiscal Yearthe Company, (A) copies of the audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated consolidating balance sheets of the Company as of the end of such fiscal year, setting forth and of the related audited consolidated and consolidating statements of income and retained earnings and cash flows for such fiscal year, all in each case, reasonable detail and stating in comparative form, corresponding form the respective consolidated and consolidating figures for the period covered by the preceding annual audit and as of the end of and for the preceding Fiscal Yearprevious fiscal year, all complete and correct and as presenting fairly the information contained therein in accordance with GAAP, and, in the case of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared such audited consolidated statements, accompanied by the Company and audited by a report thereon of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, LLP or another respected a nationally recognized firm of independent certified public accountants selected by the Company and reasonably satisfactory to (the Warrant Holders, whose opinion shall be unqualified and shall be prepared "ACCOUNTANTS") following an examination by the Accountants in connection with such consolidated financial statements in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable copies of any proxy statements, financial statements and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format other reports as the financial statements provided pursuant Company shall send or make available generally to Section 10(a)(i) and Section 10(a)(ii)its stockholders;
(v) If as soon as available, the information that would be required to be disclosed on a Current Report on Form 8-K filed or furnished under Section 13(a) or 15(d) of the Exchange Act with respect to any material event, transaction or other matter that would require a company (in the Company's position) subject to the reporting requirements of such sections of the Exchange Act, to file such a Form 8-K with the Securities and Exchange Commission; and
(vi) any other information, including, without limitation, annual budgets and financial statements or other information concerning the affairs of the Company that such Stockholder may from time to time reasonably request and that is capable of being obtained, produced, or generated without undue effort or expense by the Company or of which it has knowledge (including, without limitation, a brief statement containing a management discussion and analysis of the financial condition of the Company and describing the results of operations and significant events relating to the Company for any fiscal period).
(b) In addition, in the event that the Company becomes a "significant subsidiary" (as defined in Section 1-02(w) of Regulation S-X under the Exchange Act and applied in Section 3-09 of such Regulation S-X) of a Stockholder, the Company shall otherwise cooperate fully with such Stockholder by providing such assistance as is required for the Stockholder to prepare or have available its Quarterly Reports on Form 10-Q in accordance with the requirements of the Exchange Act, and all of the rules and regulations promulgated thereunder, including, without limitation, by arranging for the Accountants to prepare quarterly reports in connection with the Company's quarterly financial statements and other information for the referred to in Section 7(a)(iii).
(c) The Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also agrees to furnish the same to the Warrant Holders in addition TSTR Investor Group and the Columbia/Spectrum Investor Group (and to the Spectrum Entities if such entities cease to be members of the Columbia/Spectrum Investor Group), and to Motient Sub, TMI Sub, MSV Investors and the Roll-Up Entity after each such entity is no longer entitled to receive information pursuant to Section 7(a), for so long as each such investor group or entity continues to be a Stockholder, the financial statements and other information for set forth in Sections 7(a)(i), (ii), (iii) and (vi).
(d) If the Company and its Subsidiaries required indicates at the time it provides any financial or other information to be furnished a Stockholder pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted 7 that such information is material non-public information relating to the Company it or any of its Subsidiaries Affiliates ("NON-PUBLIC INFORMATION"), such Stockholder agrees not to disclose or reveal any Non-Public Information to any other Person until such time as the Non-Public Information is disclosed in a press release or a filing with the Securities and Exchange Commission, unless such Stockholder is required by its accountants applicable law to disclose such Non-Public Information. In the event that such Stockholder is requested pursuant to, or required by, applicable law to disclose or reveal any Non-Public Information, such Stockholder agrees that, prior to disclosing such information, it will provide the Company with notice of such request or requirement in order to enable the Company to seek an appropriate protective order or other remedy, or to consult with such Stockholder with respect to steps that may be taken to resist or narrow the scope of such request or legal process. Such Stockholder acknowledges that it is aware that the United States securities laws prohibit any person possessing Non-Public Information from purchasing or selling any securities on the basis of the Non-Public Information. Consequently, such Stockholder agrees not to effect any trades in securities on the basis of the Non-Public Information. Further, such Stockholder agrees that while it is in possession of the Non-Public Information, it will refrain from making recommendations about buying, selling or exercising or redeeming securities. To the extent that the Stockholder is a public company (or an Affiliate of a public company), the Company and such Stockholder shall coordinate their efforts with respect to planning for the public disclosure of the Non-Public Information in connection with each annualsuch Stockholder's obligations under the federal securities laws. For purposes of this Section 7(d), interim or special audit or review of any type of the financial statements or related internal control systemsTSTR Investors, including any comment letters (or drafts thereof) delivered to management LLC and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementconstitute Affiliates of Motient.
Appears in 1 contract
Financial and Other Information. The Company will keep, (a) Outdoor Americas and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesCBS agree that:
(i) As soon Until the date on which CBS’s annual report on Form 10-K is filed for the year in which the Split-Off Date occurs (the “CBS Last 10-K Date”), Outdoor Americas shall, and shall cause each of its Subsidiaries to, maintain a system of internal accounting controls in accordance with GAAP and SEC and Tax-related requirements that will provide reasonable assurance that Outdoor Americas’ and such Subsidiaries’ books, records and accounts fairly reflect all transactions and dispositions of assets.
(ii) Until the end of the quarterly period in which the Split-Off Date occurs, Outdoor Americas shall, and shall cause each of its Subsidiaries to, maintain a fiscal year which commences and ends on the same dates as practicable those of CBS’s fiscal year.
(iii) Unless CBS specifies otherwise to Outdoor Americas with reasonable advance notice, Outdoor Americas shall provide to CBS, until the end of the quarterly period in which the Split-Off Date occurs, (a) on a monthly basis, electronic submissions of its consolidated income statement, balance sheet and in any event cash flows. (b) within thirty five (305) days Business Days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the a year-to-date period, consolidated income statement and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except related statistical information for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), Outdoor Americas and (iiic) a copy of the monthly Credit Review Alert Report;
within six (ii6) Within forty-five (45) days Business Days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quartermonth, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited a consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and sheet as of the end of the preceding Fiscal Yearmost recent month and a year-to-date consolidated cash flows for Outdoor Americas. Until the Split-Off Date, all of which statements and balance sheets Outdoor Americas management shall be in as promptly as practicable answer any reasonable detail and satisfactory in scope questions presented by CBS related to the Warrant Holders and prepared submissions required by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, clauses (Ba) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (Db) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;preceding sentence.
(iv) As On a quarterly and annual basis until the Split-Off Date and for the first quarterly or annual period ending after the Split-Off Date, in addition to the items in Section 4.01(a)(iii) above, Outdoor Americas shall deliver to CBS: (a) within seven (7) Business Days after the end of the applicable quarterly or annual period, an electronic submission of year-to-date rollforwards of balance sheet accounts (for the same accounts required to be provided by Table of Contents Outdoor Americas to CBS as of the date hereof); (b) within eight (8) Business Days after the end of the applicable quarterly or annual period (or by such other time as CBS may reasonably request with reasonable advance notice), a representation letter using the template provided by CBS, signed by the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer and Controller of Outdoor Americas (or officers with equivalent positions); (c) as soon as practicable practicable, but in any event within seven (7) Business Days after the end of the applicable quarterly period or nine (9) Business Days after the applicable annual period, any additional supplemental schedules, as reasonably requested by CBS management and (d) two (2) Business Days before the filing of any CBS Quarterly Report on Form 10-Q or Annual Report on Form 10-K, a bring-down representation letter using the template provided by CBS, signed by the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer and Controller of Outdoor Americas (or officers with equivalent positions).
(v) After the Split-Off Date, as promptly as practicable, and in any event before November 30 of each within the Required Time Period (as defined below), Outdoor Americas shall deliver to CBS via electronic submission, unless otherwise specified, (a) a year-to-Split-Off Date consolidated income statement and related statistical information for Outdoor Americas, (b) a Budget consolidated balance sheet and Projections for each month related schedules as of the next succeeding fiscal year end of the month immediately preceding the Split-Off Date (including if not previously provided) and as of the Split-Off Date, (c) detailed year-to-date rollforwards of balance sheet accounts through the Split-Off Date and (d) a final consolidated statement of underlying assumptions) cash flows and related schedules for Outdoor Americas for the Companyyear-to-Split-Off Date. The “Required Time Period” means, with respect to clause (a) of the preceding sentence, five (5) Business Days after the end of the month in which the same format as the financial statements provided pursuant Split-Off Date occurs, with respect to Section 10(a)(iclauses (b) and Section 10(a)(ii);
(vd) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systemspreceding sentence, including any comment letters six (or drafts thereof6) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to after the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects end of the Company or any month in which the Split-Off Date occurs and with respect to clause (c) of its subsidiaries as the Warrant Holder preceding sentence, seven (or Initial Holder7) may request; provided that Business Days after the Company shall not be required to deliver information and notices under this Section 10(a) if end of the Warrant Holder (or Initial Holder) is receiving month in which the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementSplit-Off Date occurs.
Appears in 1 contract
Sources: Master Separation Agreement (CBS Outdoor Americas Inc.)
Financial and Other Information. The Company will keepBorrower represents and warrants to and agrees and covenants with the Bank that now and until this Note is paid in full, and will cause its Subsidiaries Borrower shall provide to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and Bank the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
following: (i) As soon as practicable any individual Borrower shall provide annually a personal financial statement for a year ending not more than sixty (60) days earlier, in reasonable detail and in any event certified by such Borrower to be complete and accurate, and copies of Borrower’s federal income tax returns with all schedules attached, within thirty one hundred twenty (30120) days after the end of each month, including the month of March, June, September year; and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five any entity Borrower shall provide within sixty (4560) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarterof its first three fiscal quarters, (A) unaudited consolidating and consolidated statements of income, retained earnings income and cash flows of for the Company quarter, for such the corresponding quarter in the previous fiscal year and for the period from the beginning end of the then current Fiscal Year to the end of such Fiscal Quarterprevious fiscal year, with a consolidating and unaudited consolidated balance sheets of the Company sheet as of the end of such Fiscal Quarter, all of which statements quarter end; and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within any entity Borrower shall provide annually within ninety (90) days after the end of each Fiscal Yearfiscal year, (A) audited consolidating and consolidated statements of income, retained earnings such Borrower’s income and cash flows of the Company for such year, and its consolidating and consolidated balance sheets of the Company sheet as of the end of such fiscal year, setting forth in each case, in comparative form, corresponding figures for the period covered preceding fiscal year and to be audited by the preceding annual audit and as of the end of the preceding Fiscal Yearan independent certified public accountant acceptable to Bank, all of which such statements and balance sheets shall to be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared certified by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & such ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company ’s chief financial officer to be correct and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP such Borrower’s records and to present fairly the results of such Borrower’s operations and cash flows and its financial position at year end in conformity with generally accepted auditing standards, (B) such accountants’ comment letter on accounting principles. Promptly upon the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From Bank from time to time, such Borrower shall supply all additional information regarding requested and permit the Bank’s officers, employees, accountants, attorneys and other agents to (i) visit and inspect each of Borrower’s premises, (ii) examine, audit, copy and extract from Borrower’s records and (iii) discuss Borrower’s or its affiliates’ business, properties, financial position, results of operations, assets, affairs or prospects of the Company condition (financial or any of other) with its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information responsible officers and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementindependent accountants.
Appears in 1 contract
Financial and Other Information. The Company will keepProvide Lender, and will or cause the Lessee to provide to Lender, at its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting address set forth in each caseSection 8.7 and at GMAC Commercial Mortgage Corporation, in comparative form2200 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year▇▇▇▇▇ ▇▇▇, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs▇▇e following financial statements and information on a continuing basis during the term of the Loan:
a. Within ninety (90) days after the end of each fiscal year of each Facility and the Borrower (if different from such Facility) unaudited financial statements of the operations of such Facility and the Borrower, which statements shall be prepared on an accounting basis consistent with Guarantor's audited financial statements, and shall include a balance sheet and a statement of income and expenses for the year then ended, certified by a financial officer of Borrower to be true and correct in all material respects.
b. Within one hundred twenty (120) days after the end of each fiscal year of the Guarantor, audited financial statements of the Guarantor prepared by KPMG Peat Marwick or another respected any other nationally recognized accounting firm of or independent certified public accountants selected by the Company and accountant reasonably satisfactory acceptable to the Warrant HoldersLender, whose opinion shall be unqualified and which statements shall be prepared in accordance with GAAP GAAP, and generally accepted auditing standardsshall include a balance sheet and a statement of income and expenses for the year then ended. In lieu of its obligations hereunder, Guarantor may submit to Lender, upon its filing thereof, a copy of Form 10K as filed with the United States Securities and Exchange Commission.
c. Within forty-five (B45) days after the end of each fiscal quarter of each Facility and Borrower (if different from such accountants’ comment letter Facility), unaudited financial statements of the operations of such Facility and Borrower prepared on an accounting basis consistent with Guarantor's audited financial statements, which statements shall include a balance sheet and statement of income and expenses for the Company’s internal quarter then ended, and shall be certified as true and correct in all material respects by a financial or officer of Borrower.
d. Within forty-five (45) days after the end of each fiscal quarter of the Guarantor, unaudited interim financial statements of the Guarantor, prepared on an accounting systems or controls basis consistent with Guarantor's audited financial statements, which shall include a balance sheet and statement of income and expenses for the quarter then ended, and shall be issued certified as well true and correct in all material respects by a financial officer of the Guarantor. In lieu of its obligations hereunder, Guarantor may submit to Lender a copy of Form 10Q as copies filed by Guarantor with the United States Securities and Exchange Commission.
e. Within forty-five (45) days of all other reports submitted by the Company’s accountants; end of each fiscal quarter of each Facility, a statement of the number of bed days available and the Company agrees that they shall request actual resident days incurred for such a comment letter to be prepared in connection with each auditquarter, (C) a written report (which may include a SEC Report that contains the same information) providing explanations together with, if applicable, quarterly census information of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification such Facility as of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
quarter in sufficient detail to show patient-mix (iv) As soon as practicable i.e., private, Medicare, Medicaid, and in any event before November 30 V.A.), if applicable, on a daily average basis for such year through the end of such quarter, certified by a financial officer of Borrower and Guarantor to be true and correct. Such statements of each yearFacility shall be accompanied by a summary showing the information described in Exhibit "D".
f. Within ten (10) days of filing or receipt, all Medicare and/or Medicaid cost reports and any amendments thereto filed with respect to the Facility, if any, and all responses, audit reports, or other inquiries with respect to such cost reports.
g. Within ten (10) days of receipt, a Budget and Projections for each month copy of the next succeeding fiscal year Medicaid Rate Calculation Worksheet (including a statement of underlying assumptions) or the equivalent thereof), if any, issued by the appropriate Medicaid Agency for the CompanyFacility.
h. Within ten (10) days of receipt, in any and all notices (regardless of form) from any and all licensing and/or certifying agencies that the same format as Facility license and/or the financial statements provided pursuant Medicare and/or Medicaid certification of the Facility (if any) is being downgraded to Section 10(a)(ia substandard category, revoked, or suspended or that any such action is pending or being considered.
i. Upon Lender's request, evidence of payment by Borrower or Lessee of any applicable provider bed taxes or similar taxes, which taxes Borrower agrees to pay or cause Lessee to pay.
j. Within one hundred twenty (120) days after the end of each of Lessee's fiscal years, and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information more frequently if reasonably requested by Lender, an aged accounts receivable report for the Company and its Subsidiaries on a consolidated basisFacility in sufficient detail to show amounts due from each class of patient-mix, or shall provide their Governing Bodies (as if applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to i.e., private, Medicare, Medicaid and V.A.), by the Company or any account age classifications of its Subsidiaries by its accountants in connection with each annual30 days, interim or special audit or review of any type of the financial statements or related internal control systems60 days, including any comment letters (or drafts thereof) delivered to management and all responses thereto90 days, 120 days, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementover 120 days.
Appears in 1 contract
Financial and Other Information. The Company will keep, and will cause its Subsidiaries Guarantor shall deliver to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and Administrative Agent (for prompt delivery by the Company shall cause to be furnished Administrative Agent to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Sharesof the Creditors) the following financial information:
(i) As soon as practicable practicable, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) 60 days after the end of each Fiscal Quarter including (OTHER THAN the fourth Fiscal Quarter in any Fiscal Year), (4thi) the consolidated balance sheet of Guarantor and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated statement of operations for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (Aii) unaudited consolidated the consolidating (in accordance with past ▇▇▇▇▇▇▇ dating practices of Guarantor) balance sheets and statements of incomeoperations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, retained earnings all in reasonable detail. Such financial statements shall be certified by a Senior Officer of Guarantor as fairly presenting the financial condition, results of operations and cash flows of the Company Guarantor and its Subsidiaries in accordance with Generally Accepted Accounting Principles (OTHER THAN footnote disclosures), consistently applied, as at such date and for such quarter periods, subject only to normal year-end accruals and for audit adjustments;
(ii) As soon as practicable, and in any event within 60 days after the period from the beginning end of the then current fourth Fiscal Year to Quarter in a Fiscal Year, a certificate of a Responsible Official of Guarantor setting forth the end Total Debt Ratio as of the last day of such Fiscal Quarter, and unaudited consolidated balance sheets of providing reasonable detail as to the Company as of the end of such Fiscal Quartercalculation thereof, all of which statements and balance sheets calculations shall be in reasonable detail, prepared in accordance with GAAP (except based on the preliminary unaudited financial statements of Guarantor and its Subsidiaries for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) As soon as practicable, and in any event within 100 days after the end of each Fiscal Year, (Ai) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets sheet of the Company Guarantor and its Subsidiaries as of at the end of such yearFiscal Year and the consolidated statements of operations, setting forth stockholders' equity and cash flows, in each casecase of Guarantor and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Guarantor) balance sheets and statements of operations, in comparative form, corresponding figures for the period covered by the preceding annual audit and each case as of at the end of and for the preceding Fiscal Year, all of which in reasonable detail. Such financial statements and balance sheets shall be prepared in reasonable detail accordance with Generally Accepted Accounting Principles, consistently applied, and satisfactory in scope to the Warrant Holders such consolidated balance sheet and prepared consolidated statements shall be accompanied by the Company and audited by a report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, LLP or another respected firm of other independent certified public accountants of recognized standing selected by the Company Guarantor and reasonably satisfactory to the Warrant HoldersRequired Certificate Purchasers, whose opinion shall be unqualified and which report shall be prepared in accordance with GAAP and generally accepted auditing standardsstandards as at such date, (B) such and shall not be subject to any qualifications or exceptions as to the scope of the audit nor to any other qualification or exception determined by the Required Certificate Purchasers in their good faith business judgment to be adverse to the interests of the Required Certificate Purchasers. Such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which ' report and opinion shall be issued as well as copies of all other reports submitted accompanied by a certificate stating that, in making the Company’s accountants; and the Company agrees that they shall request such a comment letter examination pursuant to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default or, if, in the Chief Financial Officer opinion of such accountants, any such Default shall exist, stating the Company nature and status of such Default, and stating that all such Financial Statements present fairly in accordance with GAAP the accountants have reviewed Guarantor's financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, calculations as at the end of such Fiscal YearYear (which shall accompany such certificate) under SECTION 13.2(b), have read such Section (including the covenants and definitions incorporated therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Guarantor in the manner prescribed by the Guarantor Loan Agreement or any Replacement Loan Agreement as incorporated therein;
(iv) As soon as practicable practicable, and in any event before November 30 within 100 days after the commencement of each yearFiscal Year, a Budget budget and Projections projection by Fiscal Quarter for each month of that Fiscal Year and by Fiscal Year for the next four succeeding fiscal year (including a statement of underlying assumptions) Fiscal Years, INCLUDING for the Companyfirst such Fiscal Year, projected quarterly consolidated balance sheets, statements of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Guarantor and its Subsidiaries, all in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii)reasonable detail;
(v) If Promptly after request by any Creditor, copies of any detailed audit reports, management letters or recommendations submitted to the Company shall otherwise prepare Board of Directors (or have available financial statements the audit committee of the Board of Directors) of Guarantor by independent accountants in connection with the accounts or books of Guarantor or any of its Subsidiaries, or any audit of any of them;
(vi) As soon as practicable, and other information for in any event (A) within 30 days after the Company end of the first three Fiscal Quarters in each Fiscal Year, and (B) 60 days after the end of the fourth Fiscal Quarter in each Fiscal Year, a written report, in form and detail mutually acceptable to Guarantor and Administrative Agent, with a narrative report describing the results of operations of Guarantor and its Subsidiaries during such Fiscal Quarter and detailing the status of development of each "New Venture Entity," including the amounts of "Capital Expenditures" and "Investments" made, and reasonably anticipated to be made, with respect thereto (in each case, as such terms are defined in the Guarantor Loan Agreement or any Replacement Loan Agreement);
(vii) Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Guarantor, and copies of all annual, regular, periodic and special reports and registration statements which Guarantor may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act, and not otherwise required to be delivered to the Certificate Purchasers pursuant to other provisions of this Section;
(viii) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report", and copies of any written communication to Guarantor or any of its Restricted Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Guarantor or any of its Restricted Subsidiaries;
(ix) Promptly after request by any Creditor, copies of any other report or other document that was filed by Guarantor or any of its Restricted Subsidiaries with any Governmental Agency;
(x) Promptly upon a Senior Officer becoming aware, and in any event within five (5) Business Days after becoming aware, of the occurrence of any (i) "reportable event" (as such term is defined in Section 4043 of ERISA) or (ii) Prohibited Transaction in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than five (5) Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Guarantor or any of its Restricted Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto;
(xi) As soon as practicable, and in any event within two (2) Business Days after a Senior Officer becomes aware of the existence of any condition or event which constitutes a Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Lessee is taking or proposes to take with respect thereto;
(xii) Promptly upon a Senior Officer becoming aware that (A) any Person has commenced a legal proceeding with respect to a claim against Guarantor or any of its Restricted Subsidiaries that is $10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (B) any creditor or certificate purchaser under a credit agreement or material lease has asserted a default thereunder on the part of Guarantor or any of its Restricted Subsidiaries, (C) any Person has commenced a legal proceeding with respect to a claim against Guarantor or any of its Restricted Subsidiaries under a contract that is not a credit agreement or material lease, which claim is in excess of $10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (D) any labor union has notified Guarantor of its intent to strike Guarantor or any of its Restricted Subsidiaries on a consolidated basisdate certain and such strike would involve more than 100 employees of Guarantor or any of its Restricted Subsidiaries, or (E) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Guarantor or any of its Restricted Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Guarantor or any of its Restricted Subsidiaries are taking or propose to take with respect thereto;
(xiii) Promptly, and in any event within five (5) Business Days of the effective date thereof, copies of (A) any and all amendments, modifications and waivers pertaining in any manner to the Guarantor Loan Agreement (or if applicable, any Replacement Loan Agreement) and (B) any and all Replacement Loan Agreements and the material agreements, documents and instruments relating thereto.
(xiv) Such other data and information as from time to time may be reasonably requested by any Creditor through Trustee or Administrative Agent, as the case may be; and
(xv) A certificate addressed to the Creditors in a form acceptable to the Creditors with respect to its compliance with the Operative Documents to which it is a party concurrently with the financial statements described in CLAUSES (a)(i) and (a)(iii) above and setting forth Lessee's determination of the applicable Pricing Level (which determination shall provide their Governing Bodies be subject to verification by the Certificate Purchasers); PROVIDED that such certificate may attach and incorporate by reference any compliance certificate required under the Guarantor Loan Agreement or Replacement Loan Agreement (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same respect to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(acompliance with SECTION 13.2(b);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Lease Intended as Security (Circus Circus Enterprises Inc)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record account with respect to its business activities in which proper entries are made reflecting all material financial transactions that are necessary to permit preparation of financial statements in accordance with GAAP; and account cause to be prepared and furnished to Lender the following (all to be prepared in accordance with GAAP consistently applied throughout the periods covered on a consistent basis, unless Borrowers’ certified public accountants concur in which full any change therein, such change is disclosed to Lender and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:is consistent with GAAP ):
(i) As as soon as practicable available, and in any event within thirty 120 days after the close of each Fiscal Year audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a Consolidated basis, certified without an Impermissible Qualification (30except for a going concern qualification arising solely as a result of the commencement of the Chapter 11 Cases) by a firm of independent certified public accountants of recognized national standing selected by Borrowers but reasonably acceptable to Lender and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year;
(ii) as soon as available, and in any event within 30 days after the end of each monthmonth hereafter (but within 60 days after the last month in a Fiscal Year), including the month unaudited balance sheets of March, June, September Borrowers and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company their respective Subsidiaries as of the end of such monthmonth and the related unaudited statements of income and cash flow for such month and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrowers as prepared in accordance with GAAP (except and fairly presenting in all material respects the Consolidated financial position and results of operations of Borrowers and their respective Subsidiaries for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding such month and year-to-date periods in the immediately preceding fiscal year period subject only to changes from audit and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within fortyyear-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for except that such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall statements need not contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarternotes;
(iii) Within ninety (90) days promptly after the end sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(iv) promptly after the sending or filing thereof, copies of any annual report to be filed in accordance with ERISA in connection with each Plan;
(v) such other data and information (financial or otherwise) as Lender, from time to time, may reasonably request, bearing upon or related to the Collateral or the financial condition or results of operations of Borrowers and their respective Subsidiaries;
(vi) promptly after delivery thereof to the U.S. Trustee or any examiner appointed in the Chapter 11 Cases, a copy of each Fiscal Year, report delivered to the U.S. Trustee or such examiner; and
(vii) promptly after any Borrower’s obtaining knowledge thereof:
(A) audited consolidated statements of income, retained earnings and cash flows (I) any pleading filed with the Court seeking relief from the automatic stay or conversion or dismissal of the Company for such yearChapter 11 Cases, (II) any written offer or other written expression of interest from any Person to purchase any material part of the Collateral, and consolidated balance sheets (III) any proposed sale of any of the Company as Collateral (including with such notice copies of drafts of all instruments and agreements applicable to any such sale), which shall specify the identity of the end of such yearproposed purchaser, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as terms of the end proposed sale and the expected date of the preceding Fiscal Yearclosing, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope subject to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, Court approval; and
(B) such accountants’ comment letter on Copies of all pleadings, motions, reports, applications and other papers filed by any Borrower with the Company’s internal financial or accounting systems or controls which shall be issued Court as well as copies of all billing and expense statements received from any Professional Person. Borrowers shall include counsel for Lender on any “Special Notice List” or other reports submitted similar list of parties to be served with papers in the Chapter 11 Cases. The timely delivery by Borrowers to Lender of the Company’s annual report on form 10-K for Parent and its Consolidated Subsidiaries shall satisfy Borrowers’ obligations under Section 10.1.3(i) above, provided that such form 10-K satisfies all of the requirements of Section 10.1.3(i). Concurrently with the delivery of the financial statements described in clause (i) of this Section 10.1.3, Borrowers shall deliver to Lender a copy of the accountants; and the Company agrees that they shall request such a comment ’ letter to be Borrowers’ management that is prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementstatements.
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (Insight Health Services Holdings Corp)
Financial and Other Information. The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesPurchaser:
(ia) As as soon as practicable and in any event within thirty (30) days after the end of each monthmonth and each fiscal quarter, including as the month case may be, and within forty-five (45) days after the end of MarchDecember, June, September and December (Ai) unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Company and its consolidated Subsidiaries for such month and the year-to-date periodperiod and, if applicable, the fiscal quarter, and an unaudited consolidated and consolidating balance sheet sheets of the Company and its consolidated Subsidiaries as of the end of such month, in the forms prepared in accordance with GAAP (except by the Company for normal adjustments and accruals and the lack of footnotes and other presentation items) its internal use consistent with past practice, subject to changes resulting from normal year-end adjustment, and (Bii) in comparative form, figures for the actual results for the corresponding month and year-to-date periods and, if applicable, the fiscal quarter in the immediately preceding fiscal year and amounts projected for such month month, year-to-date period and quarter pursuant to Section 10(a)(iv6.1(e), and (iii) together with a copy written report providing explanations of the monthly Credit Review Alert Reportany material variances;
(iib) Within forty-five intentionally deleted;
(45c) as soon as practicable and in any event within ninety (90) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarterfiscal year, (Ai) unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited its consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company Subsidiaries for such year, and consolidated balance sheets of the Company and its consolidated Subsidiaries as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Yearfiscal year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders Purchasers and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & ▇▇▇▇▇▇▇▇, CPAs, Touche or another respected national firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant HoldersPurchasers, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, provided, that each Purchaser hereby agrees that such Purchaser will consider satisfactory any Big 5 accounting firm retained by the Company, (Bii) such any accountants’ ' comment letter on the Company’s 's and its consolidated Subsidiaries' internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s 's accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(ivd) As intentionally deleted;
(e) as soon as practicable and in any event before November 30 the end of each fiscal year, a Budget an operating budget and Projections projected financial statements for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company), in the same format as the financial statements provided pursuant to Section 10(a)(iSections 6.1(a) and Section 10(a)(ii(c); provided, that the Company shall deliver such operating budget and projected financial statements for the fiscal year ending December 31, 2001 prior to the Closing Date;
(vi) If as soon as practicable, and in any event at the same time as any notice is given to the Senior Lender (but in no event later than three (3) Business Days after any officer of the Company shall otherwise prepare obtains knowledge of the occurrence of an event or have available financial statements the existence of a circumstance giving rise to a Default or an Event of Default), notice of any default under the Senior Debt, or of any Defaults or Events of Default hereunder, and (ii) any other notice, certificate, or other document or information given to or received from the Senior Lender not later than these (3) Business Days after the date thereof;
(g) with reasonable promptness, such other information for reasonably available to the Company as the Purchasers may from time to time reasonably request respecting the business, properties, prospects, condition or operations, financial or otherwise, of the Company and its Subsidiaries on Subsidiaries, including without limitation, all forms and information requested or required by the U.S. Small Business Administration as a consolidated basis, or result of any Purchaser being a small business investment company;
(h) if the Company shall provide their Governing Bodies (as applicable) its Board of Directors with any financial information not otherwise provided for herein, they it shall also furnish the same to the Warrant Holders Purchasers in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a)6.1;
(vii) When availableEach Purchaser shall keep confidential all information concerning the Corporations furnished by the Company pursuant to this Section 6.1, as well as all other information concerning the Corporations acquired by the Purchasers by virtue of their status as Purchasers under the Purchaser Documents or as a result of their (or their representatives') attendance as directors or non-voting observers at meetings of the Board of Directors of any of the Corporations (including information acquired as a result of any inspection conducted in accordance with Section 6.2 below); provided, that a Purchaser may communicate such information to such Purchaser's officers, employees, professional advisors, creditors and owners, subject to the same confidentiality provisions applicable to such Purchaser. A Purchaser may also disclose such information to any Governmental Authority having jurisdiction over such Purchaser, to the extent required by such Governmental Authority, provided that (except in the case of disclosures to the U.S. Small Business Administration by a Purchaser which is a Small Business Investment Company) such Purchaser shall use reasonable effort to notify the Company prior to such disclosure so that the Company will have a reasonable amount of time to contest such disclosure if the Company wishes to do so. A Purchaser may also disclose such information to any other Person in connection with such Purchaser's sale of any participations in, or assignments of, the Notes, Warrants or Warrant Shares, provided that such Person shall execute a confidentiality agreement requiring the recipient to maintain the confidentiality of the information to the same extent as required hereunder for the Purchaser. Following any Default or Event of Default or as may be reasonably necessary to effect the exercise of rights hereunder, a Purchaser may disclose information to others in connection with the exercise of such Purchaser's rights hereunder or under any of the other Purchaser Documents and as may be required by applicable law;
(j) If requested by Purchasers, together with each delivery of financial statements required by Section 6.1(c), a certificate of the accountants who performed the audit in connection with such statements (i) stating that they have reviewed this Agreement and that, in making the audit necessary to the issuance of a report on such financial statements, they have obtained no knowledge of any Default or Event of Default or, if such accountants have obtained knowledge of a Default or Event of Default, specifying the nature and period of existence thereof and (ii) setting forth the calculations necessary to establish whether or not the Company was in compliance with the covenants contained in Section 7.19 as of the date of such statements. The Company authorizes the Purchasers to discuss the financial condition of the Company with the Company's independent certified public accountant and agrees that such discussion or communication shall be without liability to either Purchasers or the Company's independent certified public accountants. The Company shall deliver a letter addressed to such accountants authorizing them to comply with the provisions of this Section 6.1(j); in any event, such accountants are irrevocably authorized to rely upon a copy of this Agreement as authority for such discussions and communications; and
(k) Together with each delivery of financial statements required by Sections 6.1(a), (i) a detailed report that provides a discussion of the operations and financial condition of the Company and its Subsidiaries for the period covered by such financial statements and a summary and discussion of catalog performance measures. Such certificate and report shall be in form satisfactory to the Purchasers in their discretion, and (ii) if the financial statements are for a fiscal quarter, a certificate of the Company's president or chief financial officer (A) all significant reports stating that, based on an examination sufficient to enable an informed statement, no Default or written communications submitted to Event of Default exists or, if such is not the case, specifying such Default or Event of Default and its nature, when it occurred, whether it is continuing and the steps being taken by the Company with respect to such Default or any Event of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses theretoDefault, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations setting forth the calculations necessary to lenders, financial institutions establish whether or potential investors, consultants’ reports relating to not the Company and/or its Subsidiaries;
(vii) Promptly, was in compliance with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or covenants contained in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects Section 7.19 as of the Company or any date of its subsidiaries such statements and for the periods then ended, as the Warrant Holder (or Initial Holder) case may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementbe.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Specialty Catalog Corp)
Financial and Other Information. The Company will keepDeliver to the Trustee and each Holder the following financial and other information:
(a) As soon as practicable, and will cause in any event within 30 days after the end of each calendar month, a consolidated and consolidating (in accordance with past consolidating practices of Lessee) summary statement of operations of Lessee and its Subsidiaries for such calendar month, in a form reasonably acceptable to keepthe Trustee, proper books together with a written report as to current operating data and a narrative statement discussing any significant trends reflected therein;
(b) As soon as practicable, and in any event within 60 days after the end of record each fiscal quarter (OTHER than the fourth fiscal quarter in any fiscal year), (i) the consolidated balance sheet of Lessee and account its Subsidiaries as at the end of such fiscal quarter and the consolidated statement of operations for such fiscal quarter, and its statement of cash flows for the portion of the fiscal year ended with such fiscal quarter and (ii) the consolidating (in accordance with past consolidating practices of Lessee) balance sheets and statements of operations as at and for the portion of the fiscal year ended with such fiscal quarter, all in reasonable detail. Such financial statements shall be certified by a Senior Officer of Lessee as fairly presenting the financial condition, results of operations and cash flows of Lessee and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied throughout applied, as at such date and for such periods, subject only to normal year- end accruals and audit adjustments;
(c) As soon as practicable, and in any event within 120 days after the periods covered end of each fiscal year, (i) the consolidated balance sheet of Lessee and its Subsidiaries as at the end of such fiscal year and the consolidated statements of operations, stockholders' equity and cash flows, in each case of Lessee and its Subsidiaries for such fiscal year and (ii) consolidating (in accordance with past consolidating practices of Lessee) balance sheets and statements of operations, in each case as at the end of and for the fiscal year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated balance sheet and consolidated statements shall be accompanied by a report of independent public accountants of recognized standing selected by Lessee and reasonably satisfactory to the Requisite Holders, which full report shall be prepared in accordance with generally accepted auditing standards as at such date, and true entries will shall not be made subject to any qualifications or exceptions as to the scope of the audit nor to any other qualification or exception determined by the Requisite Holders in their good faith business judgment to be adverse to the interests of the Holders;
(d) Promptly after request by the Trustee or any Holder, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Lessee by independent accountants in connection with the accounts or books of Lessee or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Lessee, and copies of all dealings annual, regular, periodic and special reports and registration statements which Lessee may file or transactions relating be required to their business file with the Securities and affairsExchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and the Company shall cause not otherwise required to be furnished delivered to each Warrant the Holder for so long pursuant to other provisions of this Section 5.14;
(f) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report", and copies of any written communication to Lessee from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Lessee;
(g) Promptly after request by the Trustee or any Holder, copies of any other report or other document (except any such Warrant Holder holds report or document pertaining solely to personal matters respecting an individual) that was filed by Lessee with any Warrant Governmental Agency;
(h) Promptly upon a Senior Officer becoming aware, and in any event within ten (10) Business Days after becoming aware, of the occurrence of any (i) "reportable event" (as such term is defined in Section 4043 of ERISA) or Warrant Shares:(ii) "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than five (5) Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Lessees are taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto;
(i) As soon as practicable practicable, and in any event within thirty two (302) days Business Days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows a Senior Officer becomes aware of the Company for existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Business Days after such month telephonic notice, written notice again specifying the nature and the year-to-date period, period of existence thereof and an unaudited consolidated balance sheet specifying what action Lessee is taking or proposes to take with respect thereto;
(j) Promptly upon a Senior Officer becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Lessee that is $10,000,000 or more in excess of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practiceamount thereof that is fully covered by insurance, (Bii) in comparative formany creditor under a credit agreement involving Indebtedness of $10,000,000 or more or any lessor under a lease involving aggregate remaining rent of $10,000,000 or more has asserted a default thereunder on the part of Lessee, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) any Person has commenced a copy legal proceeding with respect to a claim against Lessee under a contract that is not a credit agreement or material lease in excess of $10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Lessee of its intent to strike Lessee on a date certain and such strike would involve more than 100 employees of Lessee or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Lessee, a written notice describing the monthly Credit Review Alert Reportpertinent facts relating thereto and what action Lessees are taking or propose to take with respect thereto;
(iik) Within forty-five Such other data and information as from time to time may be reasonably requested by the Trustee, any Holder (45through the Trustee) days after or the end of each Fiscal Quarter including the fourth Requisite Holders; and
(4thl) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year A certificate addressed to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals Trustee and the lack of footnotes and other presentation items) consistent Holders in a form acceptable to the Trustee with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant respect to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection its compliance with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of Operative Documents to which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance it is a party concurrently with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(idescribed in clauses (b) and Section 10(a)(ii);
(vc) If above; PROVIDED that such certificate may attach and incorporate by reference any compliance certificate required under the Company shall otherwise prepare Lessee Bank Credit Agreement or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies Replacement Bank Credit Agreement (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same respect to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection compliance with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementSECTION 5.16.
Appears in 1 contract
Financial and Other Information. The Company Borrowers will keep, and will cause its Subsidiaries furnish to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesAgent:
(ia) As as soon as practicable available and in any event within on or before the date on which such financial statements are required to be filed with the SEC (or, if such financial statements are not required to be filed with the SEC, on or before the date that is 105 days after the end of each such fiscal year), (i) the consolidated balance sheet of MRC and its Subsidiaries (or, so long as the Parent is a Passive Entity which owns MRC, the Parent and its Subsidiaries) as at the end of such fiscal year, and the related consolidated statement of operations and consolidated statement of cash flows for such fiscal year, setting forth comparative consolidated figures for the preceding fiscal year, and certified by independent certified public accountants of recognized national standing whose opinion shall not be qualified as to the scope of audit or as to the status of MRC or the Parent, as applicable, or any of the Material Subsidiaries (or group of Subsidiaries that together would constitute a Material Subsidiary) as a going concern, together in any event with a certificate of such accounting firm stating that in the course of its regular audit of the business of MRC or the Parent, as applicable, and the Material Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge of any Default or Event of Default that has occurred and is continuing or, if in the opinion of such accounting firm such a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof which shall be certified by a Senior Officer of MRC or the Parent, as applicable, and (ii) the unaudited consolidating financial statements of MRC and its Subsidiaries (or, so long as the Parent is a Passive Entity which owns MRC, the Parent and its Subsidiaries) containing a balance sheet as of the end of such fiscal year and a statement of operations for such fiscal year prepared in reasonable detail;
(b) as soon as available and in any event on or before the date on which such financial statements are required to be filed with the SEC with respect to each of the first three quarterly accounting periods in each fiscal year of MRC (or, if such financial statements are not required to be filed with the SEC, on or before the date that is sixty (60) days after the end of each such quarterly accounting period), the consolidated balance sheet of MRC and its Subsidiaries (or, so long as the Parent is a Passive Entity which owns MRC, Parent and its Subsidiaries), in each case as at the end of such quarterly period and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and the related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the prior fiscal year, all of which shall be certified by a Senior Officer of MRC or the Parent, as applicable, subject to changes resulting from audit and normal year-end audit adjustments;
(c) as soon as available and in any event on or before the date that is thirty (30) days after the end of each month, including the fiscal month of MarchMRC, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of MRC and its Subsidiaries (or, so long as the Company Parent is a Passive Entity which owns MRC, the Parent and its Subsidiaries), in each case as at the end of such fiscal month and the related consolidated statement of operations for such fiscal month and for the elapsed portion of the fiscal year ended with the last day of such fiscal month, and the related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such fiscal month, and setting forth comparative consolidated figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day of the prior fiscal year, all of which shall be certified by a Senior Officer of MRC or the Parent, as applicable, subject to changes resulting from audit and normal year-end audit adjustments;
(d) not more than sixty (60) days after the commencement of each fiscal year of MRC, a budget of the Borrowers in reasonable detail for such fiscal year on a quarterly basis and as customarily prepared by management of the Borrowers for their internal use consistent in scope with the financial statements provided pursuant to Section 10.1.1(a), setting forth the principal assumptions upon which such budgets are based;
(e) at the time of the delivery of the financial statements provided for in Sections 10.1.1(a) and (b), a certificate of a Senior Officer of MRC to the effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth (i) the Consolidated Fixed Charge Coverage Ratio (and accompanying calculations) as at the end of such fiscal year or period, as the case may be, (ii) a specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be, (iii) the then applicable level of the Applicable Margin and (iv) the amount of any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in either case, in reasonable detail, the calculations and basis therefor. At the time of the delivery of the financial statements provided for in Section 10.1.1(a), a certificate of a Senior Officer of Loan Party Agent setting forth the information required pursuant to Section 1(a) of the Perfection Certificate or confirming that there has been no change in such information since the Closing Date or the date of the most recent certificate delivered pursuant to this subsection (e), as the case may be;
(f) as soon as available but in any event within twenty-five (25) days of the end of each calendar month, a Borrowing Base Certificate (which shall be calculated in a consistent manner with the most recently delivered Borrowing Base Certificate) and supporting information in connection therewith, provided that the Borrowers will be required to furnish a Borrowing Base Certificate and supporting information in connection therewith within four (4) days of the end of each calendar week as of the end of such monthcalendar week during which a FCCR Test Event is continuing;
(g) as soon as available but in any event within twenty-five (25) days of the end of each calendar month (or, prepared if requested by Agent, on a weekly basis if a FCCR Test Event has occurred and is continuing), in accordance with GAAP each case, as of the period then ended:
(except for normal adjustments and accruals and i) a schedule detailing the lack of footnotes and other presentation items) consistent with past practiceBorrowers’ Inventory, in form reasonably satisfactory to Agent, (B1) by Borrower and by location (showing Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement, in comparative formeach case, figures for to the actual results for extent the corresponding month and year-to-date periods Cost of Inventory at such location exceeds $1,000,000 in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(ivaggregate), (2) including a report of material variances or other results of Inventory counts performed by the Borrowers since the last Inventory schedule and (iii3) a copy reconciled to the Borrowing Base Certificate delivered as of the monthly Credit Review Alert Report;such date.
(ii) Within forty-five (45) days after a worksheet of calculations prepared by the end of each Fiscal Quarter including Borrowers to determine Eligible Accounts and Eligible Inventory, such worksheets detailing the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings Accounts and cash flows of Inventory excluded from Eligible Accounts and Eligible Inventory and the Company reason for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarterexclusion;
(iii) Within ninety (90) days after the end a schedule and aging of each Fiscal Year, Borrower’s and each Guarantor’s accounts payable presented at the vendor level; and
(Aiv) audited consolidated statements a detailed aged trial balance of income, retained earnings and cash flows all Accounts of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and Borrower as of the end of the preceding Fiscal Yearmonth (or shorter applicable period), all specifying each Account’s Account Debtor name and address (if requested), amount, invoice date and due date and, at the Agent’s reasonable request, showing any discount, allowance, credit, authorized return or dispute, and including such proof of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇delivery, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other invoices and invoice registers, copies of related documents, repayment histories, status reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) Agent may reasonably request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Appears in 1 contract
Sources: Loan, Security and Guarantee Agreement (South Texas Supply Company, Inc.)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating basis (30if requested by Agent) for Guarantor, Borrowers and Subsidiaries, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Guarantor and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals month and the lack related statements of footnotes income and other presentation itemscash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating basis (if requested by Agent) consistent with past practicefor Guarantor, (B) Borrowers and Subsidiaries, setting forth in comparative form, form corresponding figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered certified by the preceding annual audit and chief financial officer of Borrower Agent as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardsfairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(Bc) such accountants’ comment letter on the Company’s internal concurrently with delivery of financial statements under clauses (a) and (b) above, or accounting systems more frequently if requested by Agent while a Default or controls which shall be issued as well as copies Event of all other reports submitted Default exists, a Compliance Certificate executed by the Company’s accountants; and chief financial officer of Borrower Agent;
(d) reserved;
(e) not later than the Company agrees that they shall request such a comment letter to be prepared in connection with first day of each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification projections of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its Borrowers’ consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionbalance sheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month and for the next two Fiscal Years, quarter by quarter;
(f) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(g) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(h) such other reports and information (financial or otherwise) as the Warrant Holder (Agent may request from time to time in connection with any Collateral or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (any Guarantor’s, Borrower’s, Subsidiary’s or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementother Obligor’s financial condition or business.
Appears in 1 contract
Sources: Loan and Security Agreement (Houston Wire & Cable CO)
Financial and Other Information. The Company will keep(a) PFSweb agrees that, for so long as Daisytek International is required to consolidate PFSweb's results of operations and will cause financial position or to account for its Subsidiaries to keep, proper books investment in PFSweb under the equity method of record and account accounting (determined in accordance with GAAP generally accepted accounting principles consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:applied):
(i) PFSweb shall, and shall cause each of its Subsidiaries to, maintain a system of internal accounting controls that will provide reasonable assurance that: (A) PFSweb's and such Subsidiaries' books, records and accounts fairly reflect all transactions and dispositions of assets and (B) the specific objectives of accounting control are achieved.
(ii) PFSweb shall, and shall cause each of its Subsidiaries to, maintain a fiscal year which commences on April 1 and ends on March 31 of each calendar year.
(iii) PFSweb shall deliver to Daisytek International a trial balance submission, which shall include amounts relating to each of its Subsidiaries, in such format and detail as Daisytek International may request, as promptly as practicable following the last day of each month.
(iv) As soon as practicable and in any event within thirty (30) days practicable, after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared first three fiscal quarters in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding each fiscal year of PFSweb and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including such fiscal year, PFSweb shall deliver to Daisytek International a consolidated income statement and balance sheet for PFSweb and its Subsidiaries for such fiscal quarter or year, as the fourth case may be.
(4thv) Fiscal QuarterAs soon as practicable, and in any event no later than three days before PFSweb intends to file its Quarterly Financial Statements (as defined below) with the SEC, PFSweb shall deliver to Daisytek International as final as possible drafts of (A) unaudited the consolidated financial statements of income, retained earnings PFSweb and cash flows of the Company its Subsidiaries (and notes thereto) for such quarter periods and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quarterquarter, setting forth in each case in comparative form for each such fiscal quarter of PFSweb the consolidated figures (and unaudited consolidated balance sheets notes thereto) for the corresponding quarter and periods of the Company as of the end of such Fiscal Quarter, previous fiscal year and all of which statements and balance sheets shall be in reasonable detail, detail and prepared in accordance with GAAP (except for normal adjustments and accruals and the lack Article 10 of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the CompanyRegulation S-X, and (B) a discussion and analysis by management of PFSweb's and its Subsidiaries' financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material adverse change, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." If requested by Daisytek International, together with the delivery of the Quarterly Financial Statements, PFSweb shall deliver to Daisytek International a certificate of the chief financial officer of PFSweb to the effect that the Quarterly Financial Statements present fairly, in all material respects, the financial condition and results of operations of PFSweb and its Subsidiaries as of and for the periods presented therein; provided that PFSweb may continue to revise such Quarterly Financial Statements prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by PFSweb to Daisytek International as soon as practicable thereafter; and, provided, further, that Daisytek International and PFSweb financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which PFSweb may consider making to its Quarterly Financial Statements and related disclosures during the period prior to any anticipated filing with the SEC, and PFSweb shall obtain Daisytek International's consent prior to making any change to PFSweb's Quarterly Financial Statements or related disclosures which would have an effect upon Daisytek International's financial statements or related disclosures. In addition to the foregoing, no Quarterly Financial Statement or any other document which refers, or contains information with respect, to the ownership of PFSweb by Daisytek, the separation of PFSweb from Daisytek International or the Distribution shall be filed with the SEC or otherwise made public by PFSweb or any of its Subsidiaries without the prior written consent of Daisytek International.
(vi) As soon as practicable, and in any event no later than five days before PFSweb intends to file its Annual Financial Statements (as defined below) with the SEC, PFSweb shall deliver to Daisytek International as final as possible drafts of (A) the consolidated financial statements of PFSweb and its Subsidiaries (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such fiscal year, setting forth in each case in comparative form, form for each such fiscal year of PFSweb the consolidated figures for the actual results (and notes thereto) for the corresponding periods period of the previous fiscal year and all in the immediately preceding Fiscal Year reasonable detail and amounts projected prepared in accordance with Article 10 of Regulation S-X, and (B) a discussion and analysis by management of PFSweb's and its Subsidiaries' financial condition and results of operations for such periods pursuant fiscal year, including, without limitation, an explanation of any material adverse change, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to Section 10(a)(iv)as the "Annual Financial Statements." If requested by Daisytek International, together with the delivery of the Annual Financial Statements, PFSweb shall deliver to Daisytek International a written report certificate of the chief financial officer of PFSweb to the effect that the Annual Financial Statements present fairly, in all material respects, the financial condition and results of operations of PFSweb and its Subsidiaries as of and for the periods presented therein; provided that PFSweb may continue to revise such Annual Financial Statements prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by PFSweb to Daisytek International as soon as practicable thereafter; and, provided, further, that Daisytek International and PFSweb financial representatives shall actively consult with each other regarding any changes (whether or such SEC Report not substantive) which shall contain PFSweb may consider making to its Annual Financial Statements and related disclosures during the same information) providing explanations of period prior to any material variances and any material variances in connection anticipated filing with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) SEC, and PFSweb shall obtain Daisytek International's consent prior to making any change to PFSweb's Annual Financial Statements or related disclosures which would have an effect upon Daisytek International's financial statements or related disclosures. In addition to the foregoing, no Annual Financial Statement or any other document which refers, or contains information with respect, to the ownership of PFSweb by Daisytek, the separation of PFSweb from Daisytek International or the Distribution shall be filed with the SEC or otherwise made public by PFSweb or any of its Subsidiaries without the prior written consent of Daisytek International. In any event, PFSweb shall deliver to Daisytek International, no later than 80 days after the end of each Fiscal Yearfiscal year of PFSweb, (A) audited consolidated statements of income, retained earnings and cash flows the final form of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered Annual Financial Statements accompanied by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared an opinion thereon by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of PFSweb's independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;.
(vii) PromptlyPFSweb shall deliver to Daisytek International all Quarterly and Annual Financial Statements of each Subsidiary of PFSweb which is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available, with copies such financial statements to be provided in the same manner and detail and on the same time schedule as those financial statements of all amendments, consent letters, waivers or modifications to, PFSweb required to be delivered to Daisytek International pursuant to this Section 5.1.
(viii) PFSweb and any material notices or reports provided by any Person to the Company or any each of its Subsidiaries pursuant which files information with the SEC shall deliver to Daisytek International: (A) as soon as the terms of same are prepared, substantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or made available by the Company PFSweb or any of its Subsidiaries to their security holders, (y) all regular, periodic and other reports to be filed under Sections 13, 14 and 15 of the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and (z) all registration statements and prospectuses to be filed by PFSweb or any of its Subsidiaries with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such Person;
exchange (viiicollectively, the documents identified in clauses (x), (y) Promptlyand (z) are referred to herein as "PFSweb Public Documents"), upon obtaining knowledge thereofand (B) as soon as practicable, but in no event less later than 5 four Business Days prior to the occurrence date the same are printed, sent or filed, whichever is earliest, final copies of any Put Event; and
(ix) From time to time, all such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may requestPFSweb Public Documents; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.PFSweb may
Appears in 1 contract
Sources: Initial Public Offering and Distribution Agreement (Daisytek International Corporation /De/)
Financial and Other Information. The Company will keep, In addition to the financial statements and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause other reports required to be furnished provided under the Credit Agreement, the Borrower shall deliver to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:the Administrative Agent (and, in the case of clause (iv) below, take the other actions specified therein):
(i) As on Wednesday (or the immediately succeeding Business Day if Wednesday is not a Business Day) of each week, a rolling 13-week consolidated cash flow forecast of the Borrower and its Restricted Subsidiaries, in the form set forth on Exhibit C (the “13-Week Cash Flow Forecast”), with each delivery of the 13-Week Cash Flow Forecast to be deemed to be a representation by the Borrower that such 13-Week Cash Flow Forecast has been prepared based upon good faith estimates and assumptions that the Borrower believes were reasonable at the time made (it being understood and agreed that such 13-Week Cash Flow Forecast is not to be viewed as fact and that actual results during the period or periods covered thereby may differ from such projected results) and to be accompanied by a certification of the chief financial officer or such other financial officer that is a Responsible Officer that such 13-Week Cash Flow Forecast has been prepared based upon good faith estimates and assumptions that the Borrower believes were reasonable at the time made (it being understood and agreed that such 13-Week Cash Flow Forecast is not to be viewed as fact and that actual results during the period or periods covered thereby may differ from such projected results);
(ii) on Wednesday (or the immediately succeeding Business Day if Wednesday is not a Business Day) of each week, a variance report showing on a line item basis the percentage and dollar variance of actual cash disbursements and cash receipts for the prior week from the amounts set forth for such week in the applicable 13-Week Cash Flow Forecast;
(iii) as soon as practicable available and in any event within thirty (30) days (or, in the case of the MD&A referred to below, forty (40) days) after the end of each month, including month ending on and after the month of Marchending June 30, June2009, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company Borrower and its Restricted Subsidiaries as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals month and the lack related unaudited consolidated statements of footnotes income of the Borrower and other presentation items) consistent with past practiceits Restricted Subsidiaries for such month and for the portion of the Borrower’s fiscal year then elapsed, (B) setting forth in respect of the consolidated statements of income in comparative form, form the corresponding figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts commencing with the financial statements for the month ended February 28, 2009, the corresponding projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods income set forth in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv)Long-Term Business Plan, together with a written report (or such SEC Report which shall contain CAO Certification and, with respect to the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end last month of each Fiscal Yearfiscal quarter, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope MD&A with respect to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountantsforegoing; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;and
(iv) As soon as practicable the other financial information described on Exhibit F hereto and in any event before November 30 of each year, a Budget and Projections for each month of take the next succeeding fiscal year (including a statement of underlying assumptions) for the Companyother actions specified therein, in each case within the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries time frames specified therefor on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.Exhibit F.
Appears in 1 contract
Sources: Forbearance Agreement and Amendment to Credit Agreement (Station Casinos Inc)
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout reflecting all financial transactions; and furnish to Agent and Lenders (the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause documents required to be furnished delivered pursuant to each Warrant Holder for so long clauses (a), (b) and (h) below shall be deemed to have been delivered on the date on which such Warrant Holder holds any Warrant or Warrant Shares:documents are posted on the Securities and Exchange Commission’s website at ▇▇▇.▇▇▇.▇▇▇ and Borrowers have given notice to Agent of such posting):
(ia) As as soon as practicable available, and in any event within thirty no later than (30x) 90 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end close of each Fiscal Quarter including the fourth (4th) Fiscal QuarterYear, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal QuarterYear and the related statements of income, all of cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for Parent and its Subsidiaries, which consolidated statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP audited and certified by a firm of independent certified public accountants of recognized standing selected by Parent and acceptable to Agent (except for normal adjustments which audit shall be without a “going concern” or like qualification or exception and accruals and without any qualification or exception as to the lack scope of footnotes and other presentation items) consistent with past practicesuch audit), and certified as accurate by the Chief Financial Officer of the Company, and (B) shall set forth in comparative form, form corresponding figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year Year; and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same informationy) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) 60 days after the end of each Fiscal Year, internal management financial statements (A) audited consolidated statements balance sheet, statement of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company flow statement) as of the end of such yearFiscal Year, setting forth in each caseon a consolidated basis for Parent and its Subsidiaries, in comparative form, corresponding figures for the period covered certified by the preceding annual audit chief financial officer of Parent as prepared in accordance with its normal internal, interim reporting practices;
(b) as soon as available, and in any event no later than 45 days after the end of each Fiscal Quarter that is not the last Fiscal Quarter of a Fiscal Year, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year, all of which statements Year and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared certified by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm chief financial officer of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be Parent as prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of fairly presenting in all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP respects the financial position, position and results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company Parent and its Subsidiaries on a consolidated basisbasis as of such date and for such Fiscal Quarter and period, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish subject to normal year-end adjustments and the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions absence of this Section 10(a)footnotes;
(vic) When as soon as available, and in any event within 30 days after the end of each month that is not the last month of a Fiscal Year or Fiscal Quarter, internal management financial statements (Abalance sheet, statement of income, and cash flow statement) as of the end of such month, on a consolidated basis for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for (i) the preceding Fiscal Year and (ii) such period set forth in the projections delivered pursuant to Section 10.1.2(f) hereof, in each case on a month-to-date and year-to-date basis with respect to profit and loss and cash flow statements, in each case certified by a Senior Officer of Parent as prepared in accordance with its normal internal, interim reporting practices;
(d) within the time frame specified for the delivery of financial statements (i) under clauses (a), and (b) above, a Compliance Certificate executed by the chief financial officer of Borrower Agent and (ii) under clause (c) above, solely with respect to Section 10.7, a Compliance Certificate executed by a Senior Officer of Borrower Agent;
(e) not later than 30 days after receipt thereof by Borrowers, copies of all significant management letters (if any) and other material reports or written communications submitted to the Company or any of its Subsidiaries Borrowers by its their accountants in connection with each annualsuch financial statements, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiariesif any;
(viif) Promptlynot later than 30 days after the commencement of each Fiscal Year, with copies projections of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionParent’s consolidated balance sheets, results of operations, cash flow and Availability for such Fiscal Year, month by month;
(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(h) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that Parent or any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Parent or any Borrower files with any Governmental Authority, except the Company Securities and Exchange Commission (which shall be deemed to have been delivered when filed), or any securities exchange; and copies of any press releases or other statements made available by Parent or a Borrower to the public concerning material changes to or developments in the business of Parent or such Borrower;
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Foreign Plan;
(j) evidence as to Borrowers’ compliance with Consumer Finance Laws as reasonably requested by Agent from time to time, including opinions of counsel regarding any changes in Contracts, Credit and Collection Guidelines or business practices; and
(k) such other reports and information (financial or otherwise) as Agent may reasonably request (at its reasonable discretion or at the reasonable request of any Lender) from time to time in connection with any Collateral or the financial condition or business of Parent, any Borrower or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementtheir respective Subsidiaries.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout reflecting all financial transactions; and furnish to Agent and Lenders:
(a) as soon as available, and in any event within 90 days after the periods covered close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders' equity for such Fiscal Year, on consolidated and consolidating bases for Obligors and Subsidiaries, together with all supporting schedules and footnotes, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent (it being hereby acknowledged by Agent that BPM LLP are acceptable to Agent), and shall set forth in which full comparative form corresponding figures for the preceding Fiscal Year and true entries will be made other information acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter (but within 60 days after the last Fiscal Quarter in a Fiscal Year), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Holdings as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month (but within 45 days after the last month in a Fiscal Quarter (other than the last Fiscal Quarter of a Fiscal Year) and 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Obligors and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Holdings as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Holdings;
(e) concurrently with delivery of financial statements under clause (a) above, copies of all dealings or transactions relating management letters and other material reports submitted to Obligors by their business and affairsaccountants in connection with such financial statements, and promptly upon receipt thereof, copies of each report to Obligors (or any of them) concerning accounting practices and systems and any final comment letter submitted by such accountants to management in connection with an annual audit;
(f) not later than 30 days after the Company shall cause end of each Fiscal Year, projections of Obligors' consolidated and consolidating balance sheets, results of operations, cash flow and Availability for the next Fiscal Year on a Fiscal Quarter by Fiscal Quarter basis;
(g) at Agent's request, a listing of each Obligor's trade payables, specifying the trade creditor (if applicable) and balance due, and a detailed trade payable aging, all in form satisfactory to be furnished Agent;
(h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Obligor has made generally available to each Warrant Holder for so long its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Obligor files with the Securities and Exchange Commission or any other governmental authority, or any securities exchange; and copies of any press releases or other statements made available by an Obligor to the public concerning material changes to or developments in the business of such Warrant Holder holds any Warrant or Warrant Shares:Obligor;
(i) As promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or any employee benefit plan or similar employee benefit arrangement maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States or is mandated by a government other than the United States for employees of any Obligor or Subsidiary;
(j) as soon as practicable available, and in any event within 30 days after the initial funding of any Borrower Advance (or, in the case of a Borrower Royalty Receivable Advance, the purchase of the related Borrower Royalty Receivable), a copy of Borrowers’ internally prepared written underwriting report with respect to such Borrower Advance along with such related information as Agent may request in its reasonable discretion with respect to the underwriting rationale for such Borrower Advance;
(k) as soon as available, and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited receipt by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected copies of all reports prepared for Borrowers by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent (it being hereby acknowledged by Agent that BPM LLP are acceptable to Agent), evaluating the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies performance of all other reports submitted by Borrower Advances outstanding during the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous prior Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put EventQuarter; and
(ixl) From such other reports and information (financial or otherwise) as Agent may request from time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company time in its reasonable credit judgment in connection with any Collateral or any of its subsidiaries as the Warrant Holder (Borrower’s Subsidiary's or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (other Obligor's financial condition or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementbusiness.
Appears in 1 contract
Financial and Other Information. The Company will keep, Borrower shall maintain full and will cause its Subsidiaries to keep, proper complete books of record account and account other records reflecting the results of operations of the Projects in accordance with GAAP generally accepted accounting principles consistently applied throughout the periods covered (or such other accounting method approved in which full and true entries will be made of all dealings writing by Lender). Borrower shall furnish or transactions relating to their business and affairs, and the Company shall cause to be furnished to Lender such financial information concerning Borrower and the Projects as Lender may reasonably request from time to time. Lender shall also have access to such books and records and Borrower's corporate books, during regular business hours and upon reasonable advance notice to Borrower and shall have the right to make copies thereof or extracts therefrom and to discuss the affairs, finances and accounts of Borrower with Borrower and its independent public accountants, all as Lender may reasonably request. Without limiting the generality of the foregoing, each Warrant Holder for so long such Warrant Holder holds any Warrant year Borrower shall furnish to Lender, without prior request or Warrant Sharesdemand:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) A. Within ninety (90) days after the end of each Fiscal YearLoan Year and at such other times within thirty (30) days after request by Lender, Borrower shall provide Lender with annual financial statements (including, without limitation, a balance sheet and a profit and loss statement) for Borrower's previous fiscal year and the current fiscal year-to-date, each of which shall (i) be in form reasonably acceptable to Lender, (Aii) audited consolidated statements of incomecontain comparative information for the two (2) previous fiscal years, retained earnings (iii) be certified as true, correct and cash flows of the Company for such yearcomplete by Borrower, and consolidated balance sheets (iv) at Lender's election after the occurrence of the Company as an Event of Default or Potential Default, be certified by a certified public accountant acceptable to Lender.
B. [Intentionally Omitted.]
C. Within ninety (90) days after the end of each Loan Year and at such yearother times within thirty (30) days after request by Lender, setting forth in each case, in comparative form, corresponding figures Borrower shall provide Lender with annual operating statements for the period covered Projects for the previous fiscal year and the current fiscal year-to-date, which shall (i) be in form reasonably acceptable to Lender, (ii) contain comparative information for the two (2) previous fiscal years, (iii) be certified as true, correct and complete by Borrower, and (iv) at Lender's election after the preceding annual audit and as occurrence of an Event of Default or Potential Default, be certified by a certified public accountant acceptable to Lender.
D. Within ninety (90) days after the end of each Loan Year and at such other times within thirty (30) days after request by Lender, Borrower shall provide Lender with an updated rent roll for each Project, in form satisfactory to Lender and containing such information as is reasonably required by Lender.
E. Without limiting any of Lender's rights or remedies in the preceding Fiscal Yearevent of any failure by Borrower to comply with the provisions of this SECTION 7.8, if Borrower fails to deliver to Lender any of the financial statements or other information required herein on or before the date required in this SECTION 7.8 (the "INFORMATION DELIVERY DATE"), then commencing on the Information Delivery Date the Variable Rate Margin (as defined in the Note) or the Fixed Interest Rate (as defined in the Note), as applicable, shall be increased by one-half percent (.50%) until such time as Borrower has delivered, and Lender has approved, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided or other information required to be delivered by Borrower pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If this SECTION 7.8. In addition to such increase in the Company shall otherwise prepare Variable Rate Margin or have available financial statements and other information for Fixed Interest Rate, the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies Monthly Installments (as applicabledefined in the Note) shall be adjusted effective with any financial information not otherwise provided for hereinthe Monthly Installment due immediately following the Information Delivery Date to reflect such increase. Once Borrower has delivered, they shall also furnish the same to the Warrant Holders in addition to and Lender has approved, all of the financial statements and other information for the Company and its Subsidiaries required to be furnished delivered by Borrower pursuant to this SECTION 7.8, the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to Monthly Installments shall be readjusted effective with the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementMonthly Installment due immediately thereafter.
Appears in 1 contract
Sources: Loan and Security Agreement (Peregrine Real Estate Trust)
Financial and Other Information. The Company will keepExcept as otherwise expressly provided for in this Agreement, and will cause its Subsidiaries to keep, Borrower shall keep proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings and transactions of or transactions relating in relation to their the business and affairsaffairs of Borrower, in accordance with GAAP consistently applied, and the Company Borrower shall cause to be furnished to each Warrant Holder for so long the Agent (with copies to the other Lenders), from time to time and in a form reasonably acceptable to the Agent, such Warrant Holder holds any Warrant or Warrant Sharesinformation as the Agent may reasonably request, including without limitation, the following:
(ia) As as soon as practicable and in any event within one hundred twenty (120) days after the end of each fiscal year of Borrower, audited statements of income, retained earnings and cash flow of Borrower for each year, and a balance sheet of Borrower for such year, setting forth in each case, in comparative form, corresponding figures as of the end of the preceding fiscal year, all in reasonable detail and satisfactory in scope to the Agent and certified to Borrower by such independent public accountants as are selected by Borrower and reasonably satisfactory to the Agent, whose opinion shall be in scope and substance reasonably satisfactory to the Agent;
(b) as soon as practicable and in any event within thirty (30) days after the end of each month, including the month monthly accounting period in each fiscal year of March, June, September and December Borrower: (Ai) unaudited consolidated statements of income, income and retained earnings and cash flows of the Company Borrower for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter period and for the period from the beginning of the then current Fiscal Year fiscal year to the end of such Fiscal Quartermonthly period, and unaudited consolidated a balance sheets sheet of the Company Borrower as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such yearmonthly period, setting forth in each case, in comparative form, corresponding figures for the period covered by corresponding periods in the preceding annual audit and as of the end of the preceding Fiscal Yearfiscal year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared certified as accurate by the Company and audited by ▇▇▇▇▇▇▇chief financial officer of Borrower, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory subject to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standardschanges resulting from normal year end adjustments, (Bii) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted operating statements for such month prepared by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each auditBorrower for its internal use, (C) a written report (which may include a SEC Report that contains the same information) providing explanations including without limitation, statements of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Yearcash flow, and (Diii) the certification a compliance certificate of the Chief Financial Officer chief financial officer of Borrower in substantially the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, form attached as at the end of such Fiscal Year;Exhibit 5A (“Compliance Certificate”); and
(ivc) As as soon as practicable and in any event before November 30 within thirty (30) days after the end of each yearmonthly accounting period in each fiscal year of Borrower, a Budget and Projections Borrowing Base Certificate for each month Borrower computed as of the next succeeding fiscal year (including a statement last day of underlying assumptions) for the Companysuch month, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or signed by the Company or any chief financial officer of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementBorrower.
Appears in 1 contract
Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Parent and its Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Parent and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such Fiscal Quarter and period, subject to normal year end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Parent as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(ivnormal year end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a), (b), and (iiic) above, or more frequently if requested by Agent while a copy Default or Event of Default exists, a Compliance Certificate executed by the monthly Credit Review Alert Reportchief financial officer of Parent;
(iie) Within forty-five concurrently with delivery of financial statements under clause (45a) days after the end above, copies of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Parent by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiif) Within ninety (90) not later than 30 days after prior to the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Parent’s consolidated balance sheets sheets, results of the Company as of the end of such yearoperations, setting forth in each casecash flow, in comparative form, corresponding figures Colonial Availability and ACM-TCM Availability for the period covered by the preceding annual audit and as of the end of the preceding next Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared month by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Yearmonth;
(ivg) As soon as practicable and in any event before November 30 at Agent’s request, a listing of each yearBorrower’s trade payables, specifying the trade creditor and balance due, and a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Companydetailed trade payable aging, all in the same format as the financial statements provided pursuant form satisfactory to Section 10(a)(i) and Section 10(a)(ii)Agent;
(vh) If promptly after the Company shall otherwise prepare sending or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basisfiling thereof, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review copies of any type of the proxy statements, financial statements or related internal control systemsreports that Parent has made generally available to its shareholders; copies of any regular, including periodic and special reports or registration statements or prospectuses that Parent files with the Securities and Exchange Commission or any comment letters (other Governmental Authority, or drafts thereof) delivered to management any securities exchange; and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions copies of any press releases or potential investors, consultants’ reports relating other statements made available by Parent to the Company and/or public concerning material changes to or developments in the business of Parent and its Subsidiaries;
(viii) Promptlypromptly after the sending or filing thereof, with copies of all amendmentsany annual report to be filed in connection with each Plan;
(j) such other reports and information (financial or otherwise) as Agent may request from time to time in connection with any Collateral or Parent’s, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of Subsidiaries’ or in connection with, any Purchaser Document other Obligor’s financial condition or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Eventbusiness; and
(ixk) From on each anniversary date hereof or on such other date as reasonably required by Agent, from time to time, such additional information regarding a written certification to Agent and the business, properties, financial position, results of operations, or prospects Lenders that the form of the Company or any of its subsidiaries as Vehicle Contracts comply with the Warrant Holder (or Initial Holder) may request; provided that the Company Vehicle Contract Compliance Requirements, which certification shall not be required in form and content satisfactory to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase AgreementAgent.
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Financial and Other Information. The Company will keep, Keep adequate records and will cause its Subsidiaries to keep, proper books of record and account with respect to its business activities, in which proper entries are made in accordance with GAAP consistently applied throughout the periods covered in which full reflecting all financial transactions; and true entries will be made of all dealings or transactions relating furnish to their business Agent and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant SharesLenders:
(ia) As as soon as practicable available, and in any event within thirty 90 days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Loan Parties and Subsidiaries, which consolidated statements shall be audited and certified (30without qualification) by a firm of independent certified public accountants of recognized standing selected by Borrowers and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information reasonably acceptable to Agent;
(b) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter ending thereafter, unaudited balance sheets as of the end of such quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and, to the extent applicable, consolidating bases for Loan Parties and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by a Responsible Officer of the Loan Parties as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes;
(c) as soon as available, and in any event within 30 days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company sheets as of the end of such monthmonth and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and, to the extent applicable, consolidating bases for Loan Parties and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Lead Borrower as prepared in accordance with GAAP (except for normal adjustments and accruals fairly presenting the financial position and the lack results of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected operations for such month pursuant and period, subject to Section 10(a)(iv), normal year end adjustments and (iii) a copy the absence of the monthly Credit Review Alert Reportfootnotes;
(iid) Within forty-five (45) as soon as available, and in any event within 30 days after before the end of each Fiscal Quarter Year of the Parent, the Business Plan of the Parent and its Subsidiaries on a monthly basis for the immediately following Fiscal Year (including the fourth Fiscal Year in which the Maturity Date occurs), and as soon as available, any significant revisions to the Business Plan with respect to such Fiscal Year.
(4the) Fiscal Quarterconcurrently with delivery of financial statements under clauses (a), (Ab) unaudited consolidated and (c) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Lead Borrower;
(f) concurrently with delivery of financial statements under clause (a) above, copies of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes management letters and other presentation items) consistent with past practice, and certified as accurate material reports submitted to Borrowers by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances their accountants in connection with the Projections covering such Fiscal Quarterfinancial statements;
(iiig) Within ninety (90) not later than 30 days after prior to the end of each Fiscal Year, (A) audited consolidated statements projections of income, retained earnings and cash flows of the Company for such year, and Borrowers’ consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial positionsheets, results of operations, and cash flow for the next Fiscal Year, month by month;
(h) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Agent;
(i) promptly after the sending or prospects filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Company Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of its subsidiaries any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;
(j) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan, Canadian Pension Plan or Foreign Plan;
(k) copies of any Borrowing Base Certificate (as defined in the Warrant Holder ABL Agreement) concurrently with delivery of any Borrowing Base Certificate to the ABL Agent; and
(l) such other reports and information (financial or Initial Holderotherwise) as Agent may request; provided that the Company shall not be required request from time to deliver information and notices under this Section 10(a) if the Warrant Holder (time in connection with any Collateral or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreementany Loan Party’s or Subsidiary’s financial condition or business.
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