Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock): (a) as soon as available and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent; (b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent, (i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and (ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof; (c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent, (i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and (ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof; (d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto; (e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period; (f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange; (g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants; (h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto; (i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given; (j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser; (k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto; (l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail; (m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time; (n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a); (o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder; (p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence; (q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions; (r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and (s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 2 contracts
Samples: Note and Warrant Purchase Agreement (Easyriders Inc), Note and Warrant Purchase Agreement (Easyriders Inc)
Financial Statements and Information. The Company will Borrower shall maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):Bank:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies of the an audited consolidated and unaudited consolidating balance sheets sheet of each of (i) the Parent Borrower and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, in each case, with the related audited consolidated and unaudited consolidating statements of incomeoperations, shareholders' stockholder’s equity and cash flows as of and for such fiscal year, and the notes thereto, all in reasonable detail and stating setting forth in comparative form the figures for the preceding fiscal year, together with an unqualified report thereon of the Accountants.
(ib) the respective audited consolidated and unaudited consolidating figures As soon as of available, but in any event within 60 days after the end of and for each of the previous first three fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such quarters of each fiscal year, (x) in a copy of an unaudited consolidated and consolidating balance sheet of the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent Borrower and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties its Subsidiaries as at the end of each such fiscal year quarterly period, together with the related consolidated and the consolidated results consolidating statements of operations and cash flows for such period and for the elapsed portion of the fiscal year through such date, setting forth in conformity with GAAP and that comparative form the examination figures for the corresponding periods of the preceding fiscal year, certified by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief a Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations Borrower as being complete and correct in reasonable detail showing whether or not all material respects and as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of presenting fairly the financial condition and the results of operations of the Credit PartiesBorrower and its Subsidiaries (subject to normal year-end adjustments).
(c) Concurrently with the delivery of the financial statements specified in paragraphs (a) and (b) of this section, a Compliance Certificate, signed by a Financial Officer of the Borrower.
(d) As soon as available, but in any event within 45 days after the end of each month, an accounts receivable aging as of the end of such month, in form and for substance reasonably satisfactory to the period covered by such financial statements Bank.
(including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of e) Within 15 days after the end of and for each month, a Borrowing Base Certificate, signed by a Financial Officer of the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;Borrower.
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (Such other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which Bank may be in effect reasonably request from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 2 contracts
Samples: Credit Agreement (Meta Group Inc), Credit Agreement (Meta Group Inc)
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year (or, if earlier 15 days after the date required to be filed with the SEC), a copy of the Parent,
(i) copies Borrower’s annual report on Form 10 K in respect of the audited consolidated and unaudited consolidating such fiscal year, containing its Consolidated balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case sheet as of at the end of such fiscal year, together withwith the related Consolidated statements of operations, stockholders’ equity and cash flows as of and through the end of such fiscal year, setting forth in each casecase in comparative form the figures for the preceding fiscal year, such Consolidated financial statements to be audited and certified without Impermissible Qualification by the Accountants.
(b) As soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if earlier 15 days after the date required to be filed with the SEC), a copy of the Borrower’s quarterly report on Form 10 Q in respect of such fiscal quarter, containing the Consolidated balance sheet of the Borrower as at the end of each such quarterly period, together with the related audited consolidated and unaudited consolidating Consolidated statements of incomeoperations, shareholders' stockholders’ equity and cash flows for such period and for the elapsed portion of the fiscal year, and the notes thereto, all year through such date (setting forth in reasonable detail and stating each case in comparative form (i) the respective audited consolidated and unaudited consolidating figures as for the corresponding periods of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such preceding fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), all of which report shall be unqualified as to going concern complete and scope of audit and shall state that such consolidated financial statements present fairly, correct in all material respects, respects and shall present fairly the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit Parties, as Borrower in accordance with GAAP (subject to normal year end adjustments and the absence of footnotes).
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Partiesfirst three fiscal quarters, as of and within 90 days after the end of the last fiscal quarter, of each fiscal year a Compliance Certificate certified by a Financial Officer.
(d) Prompt written notice if there shall occur and for be continuing any Event of Default.
(e) Prompt written notice of any citation, summons, subpoena, order to show cause or other document naming the comparable period in Borrower or any of its Subsidiaries a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the prior fiscal year)validity or enforceability of any of the Loan Documents, and describing any significant events relating include with such notice a copy of such citation, summons, subpoena, order to the Credit Parties occurring during such period;show cause or other document.
(f) promptly after the same are available and in any event within 10 days thereofPromptly upon becoming available, copies of all such proxy registration statements, financial statementsAnnual Reports to shareholders, notices 10 Ks, 10 Qs, 8 Ks, proxy materials and reports as other material documents which the Borrower or any Credit Party shall send of its Subsidiaries may now or make available generally hereafter be required to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 deliver to shareholders or a similar form) which any Credit Party may file with the SEC or with deliver to any securities exchange;exchange or the SEC.
(g) promptly after Prompt written notice in the receipt thereof by event that the Borrower, any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party Subsidiaries or any ERISA Affiliate knows orknows, in the case of a Pension Plan or has reason to know, that any event or condition described in Section 4.19 hereof has shall have occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Partywill occur, or any ERISA Affiliate condition exists, with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of respect to a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to the result of which could reasonably be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely expected to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;.
(mh) Prompt written notice upon the Borrower becoming aware of any change, withdrawal or reinstatement of any rating of Applicable Debt by S&P or Xxxxx’x.
(i) Such other information as soon as available (and in the Administrative Agent or any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect Lender shall reasonably request from time to time;
(n) at least once in each fiscal year, a . Each report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance and document required to be maintained delivered by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements Borrower pursuant to subsection subparagraphs (a), (b) or and (cf) of this Section 77.1 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a report as link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 7.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any new trademarkLender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., patent and copyright registrations soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or applications, license agreements or other matters to maintain paper copies of the documents referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly followingabove, and in any event within ten Business Days of shall have no responsibility to monitor compliance by the Borrower with any Casualty such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status maintaining its copies of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seqdocuments. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties The Borrower hereby acknowledges that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes the Administrative Agent will make available to the Lenders, the Swing Line Lenders and the Issuing Banks materials and/or information provided by or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet on behalf of the Credit Parties as of Borrower hereunder (collectively, “Borrower Materials”) by posting the end of then most recently completed fiscal year of Borrower Materials on IntraLinks or another similar electronic system (the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii“Platform”) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each 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 holder Persons’ securities. The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and each 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 Issuing Banks and the Lenders to treat such prospective purchaser Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.21); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the right Borrower, any Lender, any Issuing Bank or any Swing Line Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to obtain the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the Parent, upon the written request gross negligence or willful misconduct of such holderAgent Party; provided, a very brief statement of the nature of the business of the Credit Parties and the products and services it offershowever, dated as of a date within 12 months prior that in no event shall any Agent Party have any liability to the date of resale of such Notes Borrower, any Lender, any Issuing Bank, any Swing Line Lender or Warrants any other Person for indirect, special, incidental, consequential or punitive damages (as the case may beopposed to direct or actual damages). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 2 contracts
Samples: Credit Agreement (KOHLS Corp), Credit Agreement (KOHLS Corp)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid Agent, in full form and no Notes are outstanding and the Termination Date has occurred (and, with respect detail satisfactory to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):Agent:
(a) as As soon as available available, but not later than one hundred twenty (120) days after the end of the Fiscal Year (commencing with the Fiscal Year ended December 31, 2006), audited financial statements for Borrower and its Subsidiaries on a consolidated basis, consisting of the balance sheet as of the end of such year and the related statements of income, shareholders’ equity, and retained earnings and cash flows for such year, setting forth in any event within 30 comparative form in each case the figures for the previous Fiscal Year, which financial statements shall be prepared in accordance with GAAP and certified without qualification, by an independent certified public accounting firm of national standing or otherwise acceptable to the Agent. Such financial statements shall be accompanied by the annual letters to such accountants in connection with their audit examination detailing contingent liabilities and material litigation matters. The financial statements delivered pursuant to this Section 6.2(a) shall be accompanied a Compliance Certificate as specified in Section 6.7(a).
(b) As soon as available, but not later than forty-five (45) days after the end of each monthFiscal Quarter of each Fiscal Year (commencing with the Fiscal Quarter ended December 31, copies of the 2006), unaudited consolidated and consolidating balance sheets of each of (i) the Parent financial statements for Borrower and its Subsidiaries and (ii) Subsidiaries, consisting of the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case balance sheet as of the end of such month Fiscal Quarter and the related consolidated and consolidating statements of income for such month income, shareholders’ equity, and retained earnings and cash flows for the portion of period commencing on the fiscal year ended with first day and ending on the last day of such monthFiscal Quarter, and stating in each case setting forth in comparative form the figures for the corresponding figures from the consolidated budget for such period and in the prior year, all Certified by the Chief Financial Officer of the Parent;prepared in accordance with GAAP (subject to normal year-end adjustments). The financial statements delivered pursuant to this Section 6.2(b) shall be accompanied a Compliance Certificate as specified in Section 6.7(a).
(bc) as As soon as available and in any event within 45 available, but not later than thirty (30) days after the end of each quarterly accounting period Fiscal Month of each Fiscal Year (other than commencing with the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the Fiscal Month ended December 31, 2006), unaudited consolidated and consolidating balance sheets of each of (i) the Parent financial statements for Borrower and its Subsidiaries and (ii) Subsidiaries, consisting of the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case balance sheet as of the end of such accounting period, together with, in each case, Fiscal Month and the related consolidated and consolidating statements of income, shareholders' equity ’ equity, and retained earnings and cash flows for such accounting the period commencing on the first day and for the portion of the fiscal year ended with ending on the last day of such accounting periodFiscal Month, all in reasonable detail and stating each case setting forth in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such periodprior year, all Certified prepared in accordance with GAAP (subject to normal year-end adjustments).
(d) Within five (5) Business Days after receipt thereof, copies of all management letters, exception reports or similar letters or reports received by the Chief Financial Officer Borrower or any of the Parent, andSubsidiary Guarantors from its independent certified public accountants.
(iie) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as As soon as available and in any event within 90 available, but not later than sixty (60) days after the end of each fiscal year of the Parent,
Fiscal Year, an annual operating plan for Borrower, with annual forecasts (i) copies of the audited to include forecasted consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries)sheets, in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating income statements of income, shareholders' equity and cash flows flow statements) for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures Borrower as of at the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each Fiscal Quarter of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofFiscal Year.
Appears in 2 contracts
Samples: Term Loan Agreement (International Textile Group Inc), Term Loan Agreement (International Textile Group Inc)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid Bank in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):duplicate:
(a) as soon as available available, and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of ninety (i90) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies Borrower, a copy of the audited consolidated and unaudited consolidating balance sheets financial report of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Borrower as of the end of such fiscal yearyear and for the period then ended, together withcontaining a balance sheet, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholdersincome and stockholders' equity and cash flows for such fiscal yearequity, and the notes theretoa cash flow statement, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as certified by a financial officer of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal yearBorrower, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has have been made prepared in accordance with generally accepted auditing standardsaccounting principles consistently applied, and (y) except as may be explained in such certificate; provided that, in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer event that Borrower prepares an annual audited report of the Parent; and
(ii) Borrower for such fiscal year containing a balance sheet, statements of income and stockholders' equity, Borrower shall supply such annual audited report to the Bank as soon as available. The Borrower will obtain from such accountants and deliver to the Bank at the time said audited financial statements are delivered the written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating accountants that in making the examination necessary for their report on such financial statements to said certification they have obtained no knowledge of any default by any Credit Party in the fulfillment Event of any of the terms, covenants, provisions Default or conditions of this Agreement or any of the other Note DocumentsDefault, or if such Accountants accountants shall have obtained knowledge of any such defaultEvent of Default or Default, specifying they shall state the nature and status thereofperiod of existence thereof in such statement; provided that such accountants shall not be liable directly or indirectly to the Bank for failure to obtain knowledge of any such Event of Default or Default;
(b) as soon as available, and in any event within forty-five (45) days after the end of each quarterly accounting period in each fiscal year of the Borrower (including the fourth quarter), an unaudited financial report of the Borrower as at the end of such quarter and for the period then ended, containing a balance sheet, statements of income and stockholder's equity and a cash flow statement, all in reasonable detail and certified by a financial officer of the Borrower to have been prepared in accordance with generally accepted accounting principles consistently applied, except as may be explained in such certificate;
(c) copies of all statements and reports sent to stockholders of the Borrower or filed with the Securities and Exchange Commission;
(d) concurrently copies of all financial and other information supplied by the Borrower to any Guarantor; and
(e) such additional financial or other information as the Bank may reasonably request. Together with the each delivery of financial statements furnished pursuant to subsections required by clauses (a) and (b) and (c) of this Section 7above, the Borrower will deliver to the Bank an Officer's Certificate of in a form satisfactory to the Company Bank stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, that there exists no Default or Event of Default exists or has existed during such period Default, or, if any such a Default or Event of Default shall exist or have existedDefault exists, stating the nature thereof, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party Borrower has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, . The Bank is likely authorized to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), deliver a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time any financial statement delivered to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as it to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofregulatory body having jurisdiction over it.
Appears in 1 contract
Samples: Credit Agreement (Fm Properties Inc)
Financial Statements and Information. The Company will furnish Tenant shall deliver to Landlord and to any lender or purchaser designated by Landlord the Purchaser until all following information certified to be true, complete and correct by an officer of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as soon as available and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in Tenant: upon Landlord's reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days request after the end of each fiscal year of the Parent,
(i) copies Tenant, a balance sheet of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Tenant and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case consolidated subsidiaries as of the end of such fiscal year, together witha statements of profits and losses of Tenant and its subsidiaries for such year, and an audited statement of cash flows of Tenant and its consolidated subsidiaries for such year, setting forth in each case, in comparative form, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows corresponding figures for such the preceding fiscal year, and the notes thereto, all year in reasonable detail and stating in comparative form (i) the respective audited consolidated scope and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon of Deloitte & Touche LLP, or other independent certified public accountants of recognized national standing selected by Tenant; and upon Landlord's reasonable request after the Parent end of each fiscal quarter of Tenant a balance sheet of Tenant and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such its consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties subsidiaries as at the end of such fiscal year quarter, statements of profits and the losses of Tenant and its consolidated results subsidiaries for such quarter and a statement of operations and cash flows of Tenant and its consolidated subsidiaries for such fiscal year quarter, setting forth in conformity with GAAP each case, in comparative form, the corresponding figures for the similar quarter of the preceding year, in reasonable detail and that scope, and certified to be true and complete by a financial officer of Tenant having knowledge thereof; the examination by the Accountants in connection with such consolidated foregoing financial statements has been made all being prepared in accordance with generally accepted auditing standardsaccounting principles, consistently applied. If Tenant is a reporting company under the Securities and (y) in Exchange Act of 1934, as amended, the case foregoing annual reports of such unaudited consolidating financial statements, Certified this Section 13.14 will be satisfied by the Chief Financial Officer delivery of Tenant's forms 10-K, 10-Q and annual reports promptly upon Landlord's reasonable request after their filing with the Parent; and
(ii) a written Securities and Exchange Commission. Together with the annual financial statements described above, Tenant shall deliver to Landlord an annual operating statement of the Accountants (x) setting forth computations Leased Premises in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 reasonably satisfactory to Landlord and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required certified to be filed true, complete and correct by any Credit Party or any ERISA Affiliate or the plan administrator an officer of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofTenant.
Appears in 1 contract
Samples: Lease (Trident Microsystems Inc)
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each year, a copy of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidated balance sheet as of at the end of such fiscal year, together withwith the related Consolidated statements of operations, stockholders' equity and cash flows as of and through the end of such fiscal year, setting forth in each casecase in comparative form the figures for the preceding fiscal year, such Consolidated financial statements to be audited and certified without Impermissible Qualification by the Accountants, or (ii) the Parent's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, provided the Parent is required to file such annual report on Form 10-K with the SEC and such filing is actually made.
(b) As soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a copy of (i) the Consolidated balance sheet of the Parent as at the end of each such quarterly period, together with the related audited consolidated and unaudited consolidating Consolidated statements of incomeoperations, shareholdersstockholders' equity and cash flows for such period and for the elapsed portion of the fiscal year through such date, setting forth in each case in comparative form the figures for the corresponding periods of the preceding fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of Parent as being complete and correct in all material respects and as presenting fairly the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit PartiesParent (subject to normal year-end adjustments), as or (ii) the Parent's quarterly report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto, provided the Parent is required to file such quarterly report on Form 10-Q with the SEC and such filing is actually made.
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Partiesfirst three fiscal quarters, as of and within 90 days after the end of the last fiscal quarter, of each fiscal year a Compliance Certificate, certified by a Financial Officer of the Borrower.
(d) Prompt written notice if: (i) the Parent or any Subsidiary shall fail (1) to pay, or, if required to purchase or otherwise acquire, shall fail to purchase or otherwise acquire, any part of the principal of, the premium, if any, or the interest on, or any other payment of money due under or in respect of, any Indebtedness or operating lease obligations in a then outstanding aggregate amount of $3,000,000 or more, on or prior to the expiration of any period of grace with respect thereto, whether or not such default has been waived by the holders of such Indebtedness, or (2) to perform or observe any other agreement, term or condition contained in any document evidencing or securing such Indebtedness or operating lease obligations, or in any agreement under which any such Indebtedness or operating lease obligation was issued or created, if the effect of such failure is (x) to cause, or permit such holders (or a trustee on behalf of such holders) to cause, any payment in respect of such Indebtedness or operating lease obligations to become due prior to the stated date of maturity thereof, or (y) to cause the Parent or any Subsidiary to be required to purchase or otherwise acquire such Indebtedness or operating lease obligations, (ii) there shall occur and for be continuing a Default or (iii) a Change of Control should occur.
(e) Prompt written notice of any citation, summons, subpoena, order to show cause or other document naming the comparable period in Parent or any of its Subsidiaries a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the prior fiscal year)validity or enforceability of any of the Loan Documents, and describing any significant events relating include with such notice a copy of such citation, summons, subpoena, order to the Credit Parties occurring during such period;show cause or other document.
(f) promptly after the same are available and in any event within 10 days thereofPromptly upon becoming available, copies of all such proxy registration statements, financial statementsAnnual Reports to shareholders, notices 10-Ks, 10-Qs, 8- Ks, proxy materials and reports as other material documents which the Parent or any Credit Party shall send of its Subsidiaries may now or make available generally hereafter be required to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 deliver to shareholders or a similar form) which any Credit Party may file with the SEC or with deliver to any securities exchange;exchange or the SEC.
(g) promptly after Prompt written notice in the receipt thereof by event that the Parent, any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party Subsidiaries or any ERISA Affiliate knows orknows, in the case of a Pension Plan or has reason to know, that any event or condition described in Section 4.19 hereof has shall have occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Partywill occur, or any ERISA Affiliate condition exists, with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of respect to a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to the result of which could reasonably be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely expected to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;.
(mh) Prompt written notice upon the Parent or the Borrower becoming aware of any change in the Pricing Level.
(i) Such other information as soon as available (and in the Administrative Agent or any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect Lender shall reasonably request from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 1 contract
Samples: Credit Agreement (Kohls Corporation)
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) As and to the extent requested by Buyer, as soon as available and reasonably practicable, but in any event within 30 days after prior to June 1, 2009, the end of each monthSeller Entities shall prepare and deliver, copies of or cause to be prepared and delivered, to Buyer the consolidated and consolidating balance sheets of each of historical financial information (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiariesincluding audited and, if applicable, unaudited financial information), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures including a manually signed accountants’ report from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
Audit Accountants (b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiariesdefined herein), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after Business for the same are available fiscal years ended December 31, 2007 and in any event within 10 days thereofDecember 31, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters 2008 and any reports as to material inadequacies in accounting controls (including reports as subsequent interim period, solely to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) extent required to be filed by any Credit Party Buyer with the SEC pursuant to a Current Report on Form 8-K (or any ERISA Affiliate or successor form) as contemplated by the plan administrator Securities Exchange Act of any Pension Plan controlled 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder together with an audit opinion thereon from the Audit Accountants in the form required by any Credit Partythe SEC and applicable stock exchange (the “Historical Financial Information”). Based on preliminary financial information provided to Buyer by the Seller Entities, or any ERISA Affiliate with Buyer has determined, as of the Internal Revenue Service or date of this Agreement, that (i) the PBGC, relief contemplated by Section 9.8(a)(i) hereof will be required and (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator audited financial information of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) relating to the Purchaser;
Business for the fiscal years ended December 31, 2007 and December 31, 2008 (kand, if applicable, unaudited financial information of and relating to the Business for any subsequent interim periods) promptly after becoming aware of any Material Adverse Effect will be required as the Historical Financial Information. Notwithstanding the foregoing, the Final Purchase Price Statements shall be the final determinative financial information with respect to the Business for purposes of determining whether Historical Financial Information is required under this Section 6.4, as well as the nature of such Historical Financial Information. The Seller Entities covenant that the Historical Financial Information will be prepared in accordance with GAAP as of the dates and for the periods indicated. The Seller Entities will also cooperate in all reasonable respects with the Audit Accountants in connection with this audit of the Historical Financial Information. To the extent that the Audit Accountants are no longer registered and in good standing with the Public Company Accounting Oversight Board, are not permitted by applicable Law to render an audit opinion in connection with a filing by Buyer under the Exchange Act, or otherwise cannot or will not complete the audit for reasons separate and apart from the Seller Entities and the audit process contemplated hereby, the Seller Entities shall not be liable for any failure to satisfy this covenant solely due to the failure of the Audit Accountants to remain so registered or so permitted, but instead shall use commercially reasonable efforts to cooperate with Buyer to find alternate means to satisfy delivery of the Historical Financial Information as soon as reasonably practicable. To the extent that any Governmental Authority (including the SEC) or stock exchange requires any additional financial statements or financial information or statements covering more than just the Business, whether historical or pro forma in nature, the Seller Entities shall use commercially reasonable efforts to assist Buyer at Buyer’s sole expense with preparation and presentation of such information as is required and shall provide such access to financial information and personnel and cooperate with any independent public accounting firm as is necessary to assist Buyer in fulfilling such requirements.
(b) The Seller Entities will cooperate in all reasonable respects with Buyer in Buyer’s preparation of the pro forma financial information relating to the acquisition of the Business and related manufacturing operation at the Existing Facility solely to the extent required pursuant to a Current Report on Form 8-K (or any successor form) as contemplated by the Exchange Act and the rules and regulations promulgated thereunder (the “Pro Forma Information,” and together with the Historical Financial Information, the “Required Information”), including without limitation providing such financial and other information, records and documents relating to the Business and related manufacturing operation at the Existing Facility as may be necessary to prepare such Pro Forma Information, providing access to such of the Seller Entities’ personnel, advisors and accountants as may be necessary to prepare such Pro Forma Information, and generally cooperating with Buyer’s reasonable requests in order to facilitate such preparation.
(c) The parties further acknowledge that the Required Information (if any) must be filed by Buyer with the SEC under cover of an amendment to a Current Report on Form 8-K (or any successor form) not less than seventy one (71) calendar days after the initial filing of such Current Report on Form 8-K (or any successor form), which notice initial filing, if required, must be filed by Buyer with the SEC not less than four (4) days (as calculated under the SEC’s rules and regulations) after the Closing Date. Accordingly, time is of the essence with respect to the observance of this covenant. The parties also acknowledge that any Buyer filings under the Securities Act that require the Required Information also necessitate timely cooperation, including cooperation in the performance of incremental audit procedures necessary under the Securities Act and the delivery of a manually signed consent of the Audit Accountants, by the Seller Entities, if required, to facilitate the execution and filing of an accountant’s consent. The Seller Entities covenant and agree to promptly cooperate from and after the Closing Date to facilitate such actions and will use commercially reasonable efforts to cause the Audit Accountants to perform such procedures and deliver any such consent from time to time as requested by Buyer.
(d) As soon as reasonably practicable, but in any event prior to March 31, 2009, the Seller Entities shall deliver to Buyer (i) audited financial statements relating to the Business and related manufacturing operation at the Existing Facility as of and for the nine months ended September 30, 2008 and (ii) unaudited financial statements relating to the Business and related manufacturing operation at the Existing Facility for the quarter and for the full year ended December 31, 2008 prepared in accordance with GAAP consistently applied, certified by each member of the Management Team, Parent and the Seller Entities, for purposes of determining the Purchase Price pursuant to Section 3.1 (the “Purchase Price Financial Statements”).
(e) In the event the Buyer is required to pursue the relief contemplated by Section 9.8(a), Parent and the Seller Entities shall furnish in writing such information to Buyer as Buyer may reasonably request in order to support such request and shall deliver a letter representing as to the accuracy and completeness of such information including a representation in form and substance similar to that representation set forth in Section 4A.4 of the FTNF Acquisition Agreement.
(f) In the event the relief contemplated by Section 9.8(a), if required, is not otherwise required received by Buyer within fifteen (15) days prior to the anticipated Closing Date, the parties and their respective advisors shall meet to discuss alternatives available that will permit the Buyer to fulfill its obligations under the United States securities laws, rules and regulations, but also permit the transactions contemplated hereby to be given completed on mutually agreeable terms.
(g) The parties agree that the costs of all audits required pursuant to this Section 76.4, an Officer's Certificate including in connection with the preparation of the Company setting forth the details audited financial information of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to Business for the extent not otherwise provided for in Section 14.7fiscal years ended December 31, as soon as available2007 and December 31, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including 2008 and the audited financial statements and computations, relating to the performance Business and related manufacturing operation at the Existing Facility as of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rulenine months ended September 30, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph2008, shall be audited to the extent reasonably available), borne one half (iii1/2) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofSeller Entities and one half (1/2) by Buyer.
Appears in 1 contract
Samples: Acquisition Agreement (Inverness Medical Innovations Inc)
Financial Statements and Information. The Company will Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and available, but in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 91 days after the end of each fiscal year year, a copy of the Parent,
(i) copies of the audited consolidated its Consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidating Balance Sheets as of at the end of such fiscal year, together with, in each case, with the related audited consolidated Consolidated and unaudited consolidating statements Consolidating Statements of incomeIncome, shareholdersChanges in Stockholders' equity Equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures Cash Flows as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at through the end of such fiscal year year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheet and Consolidated Statement of Income, Change in Stockholders' Equity and Cash Flow shall be audited and certified without qualification by the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and Accountants, which certification shall (i) state that the examination by the such Accountants in connection with such consolidated Consolidated financial statements has been made in accordance with generally accepted auditing standardsstandards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (yii) in include the case opinion of such unaudited consolidating Accountants that such Consolidated financial statementsstatements have been prepared in accordance with GAAP in a manner consistent with prior fiscal periods, Certified except as otherwise specified in such opinion. The Consolidating Balance Sheets and Consolidating Statements of Income, Changes in Stockholders' Equity and Cash Flows shall be certified by the Chief a Financial Officer of the Parent; andBorrower, as being complete and correct in all material respects and as presenting fairly the Consolidating financial condition and the Consolidating results of operations of the Borrower and its Subsidiaries. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to furnish Consolidated and Consolidating Balance Sheets and Consolidated and Consolidating Statements of Income, Changes in Stockholders' Equity and Cash Flows by furnishing copies of the Borrower's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, provided the Borrower is required to file such annual report on Form 10-K with the SEC and such filing is actually made.
(iib) a written statement As soon as available, but in any event within 46 days after the end of each of the Accountants (x) setting forth computations in reasonable detail showing whether or not first three fiscal quarters of each fiscal year, a copy of the Consolidated and Consolidating Balance Sheets of the Borrower as at the end of each such quarterly period, together with the related Consolidated and Consolidating Statements of Income and Cash Flows for such period and for the elapsed portion of the fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1through such date, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that setting forth in making each case in comparative form the examination necessary figures for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any corresponding periods of the termspreceding fiscal year, covenants, provisions or conditions of this Agreement or any certified by a Financial Officer of the other Note DocumentsBorrower, or if such Accountants shall have obtained knowledge of any such default, specifying as being complete and correct in all material respects and as presenting fairly the nature Consolidated and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidating financial condition and the Consolidated and Consolidating results of operations of the Credit Parties, as Borrower and its Subsidiaries. Notwithstanding any of the end foregoing, the Borrower may satisfy its obligation to furnish quarterly Consolidated Balance Sheets and Consolidated Statements of Income and for the period covered Cash Flows by such financial statements (including a comparison thereof with the financial condition and results of operations furnishing copies of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than Borrower's quarterly report on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and 10-Q in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit respect of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year)quarter, together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for required to be attached thereto, provided the Borrower is required to file such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together quarterly report on Form 10-Q with the related consolidated statements of income, shareholders' equity SEC and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that such filing is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofactually made.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies Borrower’s annual report on Form 10 K in respect of the audited consolidated and unaudited consolidating such fiscal year, containing its Consolidated balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case sheet as of at the end of such fiscal year, together withwith the related Consolidated statements of operations, stockholders’ equity and cash flows as of and through the end of such fiscal year, setting forth in each casecase in comparative form the figures for the preceding fiscal year, such Consolidated financial statements to be audited and certified without Impermissible Qualification by the Accountants.
(b) As soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a copy of the Borrower’s quarterly report on Form 10 Q in respect of such fiscal quarter, containing the Consolidated balance sheet of the Borrower as at the end of each such quarterly period, together with the related audited consolidated and unaudited consolidating Consolidated statements of incomeoperations, shareholders' stockholders’ equity and cash flows for such period and for the elapsed portion of the fiscal year, and the notes thereto, all year through such date (setting forth in reasonable detail and stating each case in comparative form (i) the respective audited consolidated and unaudited consolidating figures as for the corresponding periods of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such preceding fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), all of which report shall be unqualified as to going concern complete and scope of audit and shall state that such consolidated financial statements present fairly, correct in all material respects, respects and shall present fairly the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit Parties, as Borrower in accordance with GAAP (subject to normal year end adjustments and the absence of footnotes).
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Partiesfirst three fiscal quarters, as of and within 90 days after the end of the last fiscal quarter, of each fiscal year a Compliance Certificate certified by a Financial Officer.
(d) Prompt written notice if there shall occur and for be continuing any Event of Default.
(e) Prompt written notice of any citation, summons, subpoena, order to show cause or other document naming the comparable period in Borrower or any of its Subsidiaries a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the prior fiscal year)validity or enforceability of any of the Loan Documents, and describing any significant events relating include with such notice a copy of such citation, summons, subpoena, order to the Credit Parties occurring during such period;show cause or other document.
(f) promptly after the same are available and in any event within 10 days thereofPromptly upon becoming available, copies of all such proxy registration statements, financial statementsAnnual Reports to shareholders, notices 10 Ks, 10 Qs, 8 Ks, proxy materials and reports as other material documents which the Borrower or any Credit Party shall send of its Subsidiaries may now or make available generally hereafter be required to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 deliver to shareholders or a similar form) which any Credit Party may file with the SEC or with deliver to any securities exchange;exchange or the SEC.
(g) promptly after Prompt written notice in the receipt thereof by event that the Borrower, any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party Subsidiaries or any ERISA Affiliate knows orknows, in the case of a Pension Plan or has reason to know, that any event or condition described in Section 4.19 hereof has shall have occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Partywill occur, or any ERISA Affiliate condition exists, with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of respect to a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to the result of which could reasonably be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely expected to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;.
(mh) Prompt written notice upon the Borrower becoming aware of any change, withdrawal or reinstatement of any rating of Applicable Debt by S&P or Xxxxx’x.
(i) Such other information as soon as available (and in the Administrative Agent or any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect Lender shall reasonably request from time to time;
(n) at least once in each fiscal year, a . Each report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance and document required to be maintained delivered by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements Borrower pursuant to subsection subparagraphs (a), (b) or and (cf) of this Section 7, 7.1 shall be deemed to have been delivered on the date on which the Borrower notifies the Administrative Agent and the Lenders that such report or such document has been posted at a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of site (the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or address of which any of them has knowledge. It shall be contained in such notice) on the world wide web, which site is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated accessible by a holder thereof shall have the right to obtain widely held nationally recognized web browser, from the Parent, upon the written request of which such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall report or document may be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofreadily printed.
Appears in 1 contract
Samples: Credit Agreement (Kohls Corporation)
Financial Statements and Information. The Company will Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidated Balance Sheet as of at the end of such fiscal year, together with, in each case, with the related audited consolidated Consolidated Statements of Profit and unaudited consolidating statements Loss and Reconciliation of income, shareholders' equity Surplus and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures Cash Flows as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at through the end of such fiscal year year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheets and Consolidated Statements of Profit and Loss and Reconciliation of Surplus and Cash Flows shall be audited and certified without qualification by the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and Accountants, which certification shall
(i) state that the examination by the such Accountants in connection with such consolidated Consolidated financial statements has been made in accordance with generally accepted auditing standardsstandards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (yii) in include the case opinion of such unaudited consolidating Accountants that such Consolidated financial statementsstatements have been prepared in accordance with GAAP in a manner consistent with prior fiscal periods, Certified except as otherwise specified in such opinion. Notwithstanding the foregoing, the Borrower may satisfy its obligation to furnish the annual Consolidated financial statements referred to above with respect to any fiscal year by the Chief Financial Officer furnishing copies of the Parent; andBorrower's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, provided the Borrower is required to file such annual report on Form 10-K with the SEC and such filing is actually made.
(iib) a written statement As soon as available, but in any event within 45 days after the end of each of the Accountants (x) setting forth computations in reasonable detail showing whether or not first three fiscal quarters of each fiscal year, a copy of the Consolidated Balance Sheet of the Borrower as at the end of each such quarterly period, together with the related Consolidated Statements of Profit and Loss and Reconciliation of Surplus and Cash Flows for such period and for the elapsed portion of the fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1through such date, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that setting forth in making each case in comparative form the examination necessary figures for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any corresponding periods of the termspreceding fiscal year, covenants, provisions or conditions of this Agreement or any certified by a Financial Officer of the other Note DocumentsBorrower, or if such Accountants shall have obtained knowledge of any such default, specifying as being complete and correct in all material respects and as presenting fairly the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit PartiesBorrower and its Subsidiaries. Notwithstanding the foregoing, the Borrower may satisfy its obligation to furnish the quarterly Consolidated financial statements referred to above with respect to any fiscal quarter by furnishing copies of the Borrower's quarterly report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto, provided the Borrower is required to file such quarterly report on Form 10-Q with the SEC and such filing is actually made.
(c) Within 45 days after the end of each of the first three fiscal quarters (90 days after the end of the last fiscal quarter), a Compliance Certificate, certified by a Financial Officer of the Borrower.
(d) Within 30 days after the close of each month, for the Borrower and its Subsidiaries on a Consolidated basis, monthly operating statistics for such month including Consolidated profit and loss statements for such month and for the period from the beginning of the current fiscal year to the end of such month and subscriber reports and a balance sheet as of the end of such month, all in form and for substance satisfactory to the period covered Agent and certified by such financial statements (including a comparison thereof with the financial condition and results of operations Financial Officer of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;Borrower.
(fe) promptly after the same are As soon as available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 60 days after the beginning first day of each fiscal year of the Company)Borrower, a copy of the plan and forecast (including a consolidated projected Consolidated income statement and consolidating budget funds flow statement) of the Credit Parties, in each case prepared by the Company Borrower for such fiscal year.
(f) Promptly upon the request of the Agent or any Lender, copies of all material amendments or renewals of material franchises, licenses, consents, approvals and all amendments thereto which authorizations granted or issued by any Governmental Authority, necessary and appropriate to operate the CATV Systems and of any other material communications between the Borrower or any Subsidiary and the FCC or any other Governmental Authority having jurisdiction over the Borrower or such Subsidiary.
(g) Such other information as the Agent or any Lender may be in effect reasonably request from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each year, a copy of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidated balance sheet as of at the end of such fiscal year, together withwith the related Consolidated statements of operations, stockholders' equity and cash flows as of and through the end of such fiscal year, setting forth in each casecase in comparative form the figures for the preceding fiscal year, such Consolidated financial statements to be audited and certified without Impermissible Qualification by the Accountants, or (ii) the Borrower's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, provided the Borrower is required to file such annual report on Form 10-K with the SEC and such filing is actually made.
(b) As soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a copy of (i) the Consolidated balance sheet of the Borrower as at the end of each such quarterly period, together with the related audited consolidated and unaudited consolidating Consolidated statements of incomeoperations, shareholdersstockholders' equity and cash flows for such period and for the elapsed portion of the fiscal year through such date, setting forth in each case in comparative form the figures for the corresponding periods of the preceding fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of Borrower as being com- plete and correct in all material respects and as presenting fairly the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit PartiesBorrower (subject to normal year-end adjustments), as or (ii) the Borrower's quarterly report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto, provided the Borrower is required to file such quarterly report on Form 10-Q with the SEC and such filing is actually made.
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Partiesfirst three fiscal quarters, as of and within 90 days after the end of and for the comparable last fiscal quarter, of each fiscal year a Compliance Certificate, certified by a Financial Officer of the Borrower.
(d) Prompt written notice if: (i) the Borrower or any Subsidiary shall fail (1) to pay, or, if required to purchase or otherwise acquire, shall fail to purchase or otherwise acquire, any part of the principal of, the premium, if any, or the interest on, or any other payment of money due under or in respect of, any Indebtedness or operating lease obligations in a then outstanding aggregate amount of $5,000,000 or more, on or prior to the expiration of any period of grace with respect thereto, whether or not such default has been waived by the holders of such Indebtedness, or (2) to perform or observe any other agreement, term or condition contained in any document evidencing or securing such Indebtedness or operating lease obligations, or in any agreement under which any such Indebtedness or operating lease obligation was issued or created, if the effect of such failure is (x) to cause, or permit such holders (or a trustee on behalf of such holders) to cause, any payment in respect of such Indebtedness or operating lease obligations to become due prior fiscal year)to the stated date of maturity thereof, or (y) to cause the Borrower or any Subsidiary to be required to purchase or otherwise acquire such Indebtedness or operating lease obligations, (ii) there shall occur a Default or a Material Adverse Change or (iii) a Change of Control should occur.
(e) Prompt written notice of any citation, summons, subpoena, order to show cause or other document naming the Borrower or any of its Subsidiaries a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the validity or enforceability of any of the Loan Documents, and describing any significant events relating include with such notice a copy of such citation, summons, subpoena, order to the Credit Parties occurring during such period;show cause or other document.
(f) promptly after the same are available and in any event within 10 days thereofPromptly upon becoming available, copies of all such proxy registration statements, financial statementsAnnual Reports to shareholders, notices 10-Ks, 10-Qs, 8- Ks, proxy materials and reports as other material documents which the Borrower or any Credit Party shall send of its Subsidiaries may now or make available generally here- after be required to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 deliver to shareholders or a similar form) which any Credit Party may file with the SEC or with deliver to any securities exchange;exchange or the SEC.
(g) promptly after Prompt written notice in the receipt thereof by event that the Borrower, any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party Subsidiaries or any ERISA Affiliate knows orknows, in the case of a Pension Plan or has reason to know, that any event or condition described in Section 4.19 hereof has shall have occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Partywill occur, or any ERISA Affiliate condition exists, with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of respect to a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to the result of which could reasonably be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely expected to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;.
(mh) Such other information as soon as available (and in the Administrative Agent or any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect Lender shall reasonably request from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 1 contract
Financial Statements and Information. The Company will furnish 8.3.1. All financial statements prepared pursuant to this Section 8.3 shall present fairly the Purchaser until all financial position and operating results (of the Obligations have been indefeasibly paid LLC and shall be prepared in full and no Notes are outstanding and the Termination Date has occurred accordance with generally accepted accounting principles as provided in Section 8.2.
8.3.2. Within fifteen (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f15) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as soon as available and in any event within 30 days after the end of each monthmonthly accounting period (the “Fiscal Month”) of each Fiscal Year, copies commencing with the first full Fiscal Month after the date of this Agreement, the President shall prepare and submit or cause to be prepared and submitted to the Class A Members an unaudited statement of profit and loss for the LLC for such Fiscal Month and an unaudited balance sheet of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case LLC dated as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended Fiscal Month, in each case prepared in accordance with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior generally accepted accounting principles consistently applied (subject to normal year, all Certified by the Chief Financial Officer of the Parent;-end adjustments).
8.3.3. Within twenty five (b25) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period“Fiscal Quarter”) in of each fiscal year Fiscal Year, commencing with the first full Fiscal Quarter after the date of this Agreement, the President shall prepare and submit or cause to be prepared and submitted to the Class A Members an unaudited statement of profit and loss and an unaudited statement of cash flows for the LLC for such Fiscal Quarter and an unaudited balance sheet of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case LLC dated as of the end of such accounting period, together withFiscal Quarter, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such case prepared in accordance with generally accepted accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form principles consistently applied (isubject to normal year-end adjustments).
8.3.4. Within sixty (60) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year Fiscal Year during the term of this Agreement, the Parent,
President shall prepare and submit or cause to be prepared and submitted to the Class A Members (i) copies of the an audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal yearsheet, together with, in each case, the related with audited consolidated and unaudited consolidating statements of incomeprofit and loss, shareholders' Members’ equity and cash flows for such fiscal year, and the notes thereto, all changes in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and financial position for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for LLC during such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the ParentFiscal Year; and
(ii) a written statement report of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any activities of the terms, covenants, provisions or conditions of this Agreement or any of LLC during the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available)Fiscal Year, (iii) a consolidated balance sheet of report summarizing the Credit Parties as of fees and other remuneration paid by the end of then most recently completed fiscal quarter of LLC for such Fiscal Year to the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity Members and cash flows for the portion of the current fiscal year then ended, any Affiliates thereof; and (iv) an unaudited statement showing any other information that is necessary amounts distributed to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request Members in respect of such holder, a very brief statement Fiscal Year.
8.3.5. The President shall provide to the Class A Members such other reports and information concerning the business and affairs of the nature of LLC as may be required by the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants Delaware LLC Act or by any prospective purchaser other law or regulation of Notes or Warrants designated in writing by any regulatory body applicable to the holder thereofLLC.
Appears in 1 contract
Samples: Limited Liability Company Agreement (HNS-India VSAT, Inc.)
Financial Statements and Information. The Company Companies will furnish to the Purchaser until all of the Obligations have been indefeasibly paid you in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g)duplicate, so long as they you shall be obligated to purchase Securities hereunder or shall hold any Warrants or of the Securities, and to each other institutional holder from time to time of any shares of Warrant Stock):the Securities:
(a) as soon as available and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,Holding Company and of the Operating Company:
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent Holding Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholdersand the related consolidated statements of stockholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with of the last day of such accounting period, all in reasonable detail and stating in comparative form Holding Company then ended; and
(iii) the consolidated and consolidating figures as balance sheets of the end of Operating Company and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not its Subsidiaries as at the end of such period, the related consolidated and consolidating statements of income, and the related consolidated statements of stockholders' equity and cash flows for such period and for the portion of the fiscal quarter there existed any Default or Event year of Default resulting the Operating Company then ended; in each case setting forth in comparative form the corresponding figures for the same period and portion of the next preceding fiscal year and the corresponding figures from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 the budgets for such period and 10.18 hereoffor the fiscal year which includes such period;
(cb) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,Holding Company and of the Operating Company:
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Holding Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholdersand the related consolidated statements of stockholders' equity and cash flows for such fiscal year; and
(ii) the consolidated and consolidating balance sheets of the Operating Company and its Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income, and the notes theretorelated consolidated statements of stockholders' equity and cash flows for such year; in each case setting forth in comparative form the corresponding figures for the next preceding fiscal year and the corresponding figures from the budgets for such fiscal year, all in reasonable detail and stating in comparative form (i) accompanied by the respective audited standard unqualified report on such consolidated and unaudited consolidating figures as financial statements of the end Holding Company and its Subsidiaries and of the Operating Company and for the previous fiscal year or part thereof and its Subsidiaries of Ernst & Young LLP (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent Holding Company or the Operating Company, as applicable, and reasonably acceptable satisfactory to the Purchaser (the "Accountants"Required Holders of each class of Securities), which report shall be (i) state that the audit of such accountants in connection with such consolidated financial statements has been conducted in accordance with generally accepted auditing standards and that such accountants believe that such audit provides a reasonable basis for their opinion, (ii) contain the other statements required from time to time by the American Institute of Certified Public Accountants for an auditor's standard unqualified as to going concern and scope of audit opinion (and shall state not contain any additional explanatory paragraph concerning uncertainties or other matters), (iii) include the opinion of such accountants that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position of such Credit Parties the Holding Company and its Subsidiaries or of the Operating Company and its Subsidiaries, as applicable, as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year year, in conformity with GAAP and GAAP, (iv) state that each holder of the examination by the Accountants in connection with Securities may rely upon such consolidated financial statements has been made in accordance with generally accepted auditing standards, report and (yv) in be accompanied by a separate certificate from such accountants which shall state (A) that such accountants are familiar with the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer terms of the Parent; and
(ii) a written statement Operative Documents and provide negative assurance relative to compliance with the applicable covenants of the Accountants Operative Documents as they relate to accounting matters and (xB) setting forth computations in reasonable detail showing whether if their examination has disclosed the existence, during or not as at the end of such the fiscal year there existed covered by such financial statements and/or the date of such certificate, of (x) any "reportable condition" (as defined in Statement on Auditing Standards No. 60 issued by the Auditing Standards Board of the American Institute of Certified Public Accountants) in the internal control structure of the Holding Company or any of its Subsidiaries, (y) any Change of Control or (z) any Default or Event of Default resulting from and, if their examination has disclosed such a breach condition or violation event, specifying in reasonable detail the nature and period of any of Sections 10.1existence thereof, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating provided that in making the examination necessary for issuing such certificate such accountants shall not be required to go beyond normal accounting procedures conducted in connection with issuing their report on referred to above;
(c) together with each delivery of quarterly and annual financial statements pursuant to sections 7(a) and 7(b), an Officers' Certificate of the Holding Company which shall:
(i) certify that such financial statements they obtained no have been prepared in accordance with GAAP (subject, in the case of any unaudited financial statements, to normal year-end and audit adjustments and the omission of footnotes) applied on a consistent basis throughout the periods covered thereby and present fairly in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Holding Company and its Subsidiaries or of the Operating Company and its Subsidiaries, as applicable, as at the end of and for the periods covered thereby in conformity with GAAP;
(ii) state that, after due inquiry, the signers do not have knowledge of the existence, during the fiscal period covered by such financial statements or as at the date of such Officers' Certificate, of (A) any default by any Credit Party "reportable condition" (as so defined) in the fulfillment of any internal control structure of the terms, covenants, provisions or conditions of this Agreement Holding Company or any of the other Note Documentsits Subsidiaries, (B) any Change of Control or if such Accountants shall have obtained knowledge of (C) any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period Default, or, if such a Default or Event of Default shall exist or have existedis not the case, specifying in reasonable detail the nature and period of existence thereof and what action the applicable Credit Party has been taken, is taking or proposes being taken and is proposed to take be taken with respect thereto;
(eiii) concurrently show in reasonable detail all computations required to demonstrate compliance, during and at the end of the fiscal period covered by such financial statements, with the financial statements furnished pursuant to subsections provisions of sections 14.5, 14.6, 14.7, 14.8, 14.9, 14.10, 14.13, 14.14, 14.15 and 14.18; (biv) and (c) of this Section 7, a brief management include in reasonable detail management's discussion and analysis of the financial condition and results of operations and the financial condition of the Credit Parties, Holding Company and its Subsidiaries and of the Operating Company and its Subsidiaries as of at the end of and for the fiscal period covered by such financial statements (statements, including a comparison thereof with the financial condition and results discussion of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to variation from the Credit Parties occurring during budgets for such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given delivered pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Companysection 7(h), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (andAgent, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):a copy thereof for each Bank:
(a) as soon as available available, and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of one hundred twenty (i120) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies , a copy of the audited annual consolidated and unaudited consolidating balance sheets financial statement of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of for such fiscal yearyear containing a balance sheet, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholdersincome and stockholders' equity and a cash flows for such fiscal year, and the notes theretoflow statement, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as certified by Price Waterhouse, LLP or another independent certified public accountant of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of nationally recognized national standing selected by the Parent and reasonably acceptable satisfactory to the Purchaser (the "Accountants")Agent, which report shall be unqualified as to going concern and scope of audit and shall state stating that such consolidated financial statements fairly present fairly, in all material respects, the consolidated financial position of such Credit Parties the Parent as at of the end of such fiscal year date indicated and the consolidated results of its operations and cash flows changes in financial position for such fiscal year the period indicated in conformity with GAAP applied on a consistent basis and that the examination audit by the Accountants such accountants in connection with such consolidated financial statements has been made in accordance with United States generally accepted auditing standards, . The Parent shall obtain from such accountants and (y) in deliver to each Bank at the case of such unaudited consolidating time said financial statements, Certified by statements are delivered the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating accountants that in making the examination necessary for their report on such financial statements to said certification they have obtained no knowledge of any default by any Credit Party in the fulfillment Event of any of the terms, covenants, provisions Default or conditions of this Agreement or any of the other Note DocumentsDefault, or if such Accountants accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period orDefault, if such a Default or Event of Default they shall exist or have existed, state the nature and period of existence thereof and what action in such statement; PROVIDED, that such accountants shall not be liable directly or indirectly to the applicable Credit Party has taken, is taking Banks for failure to obtain knowledge of any such Event of Default or proposes to take with respect theretoDefault;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7as soon as available, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 forty-five (45) days after the end of the first three quarterly accounting periods in each fiscal year of the Parent and within sixty (60) days after the end of the fourth accounting period in each fiscal year of the Parent, an unaudited consolidated and consolidating financial report of the Parent as at the end of such quarter and for the period then ended, containing a balance sheet, statements of income and stockholders' equity and a cash flow statement, all in reasonable detail and certified by the chief executive officer, vice president of finance or chief financial officer of the Parent as presenting fairly the consolidated and consolidating financial position of the Parent as of the date indicated and the results of its operations for the period indicated in conformity with GAAP applied on a consistent basis, subject to changes resulting from year-end adjustments and subject to any non-conformity with GAAP as a result of the absence of any footnotes required by GAAP;
(c) promptly upon receipt thereof, a copy of each internal control letter and reportable conditions memorandum submitted to any Borrower by its independent accountants in connection with any annual, interim or special audit made by them;
(d) promptly after the sending or filing thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party Borrower shall send or make available generally to their security holdersits securityholders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file Borrower files with the SEC Securities and Exchange Commission or with any other securities exchange;
(ge) promptly upon an Authorized Officer of any Borrower learning thereof, of (i) any strike or walkouts or (ii) any labor dispute to which any Borrower becomes a party, and the expiration or termination of any labor contract to which any Borrower is a party or by which any Borrower is bound or of any negotiations with respect thereto if such labor dispute, expiration, termination or negotiations would have a Material Adverse Effect;
(f) promptly after becoming available, a copy of each new Material Contract; and
(g) such additional financial or other information as any Bank may reasonably request. All financial statements specified in clauses (a) and (b) above shall be furnished with comparative figures for the receipt thereof corresponding period in the preceding year. Together with each delivery of financial statements required by any Credit Party, clauses (a) and in any event within 10 days thereof, copies of any management letters (b) above and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit Acquisition pursuant to Section 10.23, the Parent will deliver to the Agent a Compliance Certificate in the form of such corporation made by the Accountants;
(h) promptly (EXHIBIT G attached hereto evidencing its compliance with Section 10.1 and in any event within 5 days) after becoming aware of (1) the existence of any Default or stating that there exists no Event of Default on the part or Default, or, if any such Event of any Credit PartyDefault or Default exists, an Officer's Certificate of the Company specifying stating the nature and thereof, the period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party Parent has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely . The Banks are authorized to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), deliver a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time any financial statement delivered to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as it to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofregulatory body having jurisdiction over it.
Appears in 1 contract
Samples: Revolving Credit Agreement (Cross Continent Auto Retailers Inc M&l)
Financial Statements and Information. The Company will furnish Borrower shall deliver (or cause to the Purchaser until all be delivered) to Agent each of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):following:
(a) as As soon as available and in any event within 30 one hundred twenty (120) days after the close of each fiscal year of Borrower, copies of the consolidated balance sheet of Borrower and its Consolidated Subsidiaries, along with consolidating schedules, as of the close of such fiscal year and statements of income and retained earnings and a statement of cash flows of Borrower and its Consolidated Subsidiaries for such fiscal year, in each case setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail and accompanied by an opinion thereon (which shall not be qualified by reason of any limitation imposed by Borrower) of independent accountants of recognized national standing selected by Borrower and satisfactory to Agent, to the effect that such consolidated and consolidating financial statements have been prepared in accordance with Good Accounting Practice consistently maintained and applied (except for changes in which such accountants concur) and that the examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, includes such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and copies of the unaudited consolidated balance sheet and income statement of Borrower and its Consolidated Subsidiaries as of the close of such fiscal year;
(b) As soon as available and in any event within thirty (30) days after the end of each month, copies of the consolidated and consolidating balance sheets sheet of each of (i) the Parent Borrower and its Consolidated Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month month, and the related consolidated and consolidating statements of income and retained earnings and a statement of cash flows of Borrower and its Consolidated Subsidiaries for such that month and for the portion of the fiscal year ended ending with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, setting forth in each case, the related comparative form (on a consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and basis) the figures for the portion of the preceding fiscal year ended with the last day of such accounting periodyear, all in reasonable detail and stating certified by an Authorized Person as being true and correct and as having been prepared in comparative form accordance with Good Accounting Practice (iwithout the required footnotes), subject to year-end audit and adjustments;
(c) Promptly upon receipt thereof, one copy of each written report submitted to Borrower (with respect to Borrower or its Subsidiaries) by independent accountants in any annual, quarterly or special audit made, it being understood and agreed that all audit reports which are furnished to Agent pursuant to this Section shall be treated as confidential, but nothing herein contained shall limit or impair Agent's right to disclose such reports to any appropriate Governmental Authority or to use such information to the consolidated and consolidating figures as extent pertinent to an evaluation of the end Obligations or to enforce compliance with the terms and conditions of this Agreement, or to take any lawful action which Agent deems necessary to protect its interests under this Agreement;
(d) Contemporaneously with the furnishing of the financial statements referred to in subparagraph (b) above, a certificate of an Authorized Person of Borrower stating that the signer has reviewed the terms of this Agreement and for of the corresponding date Notes, has set forth in or attached to such certificate such reasonable detail of such computations as is necessary to establish compliance with the covenants contained in this Agreement, and has made, or caused to be made under his supervision, a review of the transactions and condition of Borrower during the accounting period in covered by such financial statements and that such review has not disclosed the previous fiscal year and (ii) the corresponding figures from the consolidated budget for existence during such accounting period, all Certified by and that the Chief Financial Officer signer does not have knowledge of the Parentexistence, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end date of such fiscal quarter there existed certificate, of any condition or event which constitutes a Default or an Event of Default, or if any such Default or Event of Default resulting from a breach existed or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such defaultexists, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action Borrower (or its Subsidiaries, as the applicable Credit Party case may be) has taken, taken or is taking or proposes to take with respect thereto;
(e) concurrently Promptly upon their becoming available, one copy of each financial statement, report, notice or proxy statement sent by Borrower to stockholders generally and of each regular or periodic report, registration statement or prospectus filed by Borrower with any securities exchange or the financial statements furnished pursuant to subsections (b) Securities and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing Exchange Commission or any significant events relating to the Credit Parties occurring during such periodsuccessor agency;
(f) promptly after the same are As soon as available and in any event within 10 thirty (30) days thereofafter each calendar month, copies furnish to Agent (i) a Borrowing Report, (ii) an aging and listing of all such proxy statementsaccounts receivable, financial statements, notices and reports as any Credit Party shall send or make available generally in form satisfactory to their security holdersAgent, and copies (iii) a jobs in progress report, in form satisfactory to Agent, for such month, with respect to each of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;Borrower's Subsidiaries; and
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from From time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) such other information concerning Borrower or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood its Subsidiaries, its business, assets, properties, condition and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that operations as Agent may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofrequest.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Astrotech International Corp /New)
Financial Statements and Information. The So long as any of the Notes shall remain outstanding, the Company will furnish to the (a) a Purchaser until all Agent if one has been appointed pursuant to Section 30 hereof or (b) each of the Obligations have Purchasers and to each other holder from time to time of the Notes if a Purchaser Agent has not been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):appointed:
(a) as soon as available available, and in any event event, within 30 days after the end of each monthfiscal month of the Company other than any fiscal month which is the final fiscal month in the fiscal quarter of the Company, copies and within 45 days after the end of each fiscal month of the Company which is the final month in the fiscal quarter of the Company, the consolidated and consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such month period and the related consolidated and consolidating statements of income and cash flows for such month period and for the portion of the such fiscal year ended with on the last day of such monthperiod, and stating in each case setting forth in comparative form the corresponding figures for the same period and portion of the immediately preceding fiscal year and the corresponding figures from the consolidated budget budgets for such period and for the prior year, all Certified by the Chief Financial Officer of the Parentfiscal year which includes such period;
(b) as soon as available available, and in any event event, within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies of Company, the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, in each case, year and the related audited consolidated and unaudited consolidating statements of income, shareholderschanges in stockholders' equity and cash flows for such year, in each case setting forth in comparative form the corresponding figures for the immediately preceding fiscal year and the corresponding unaudited figures from the budget for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) accompanied by the respective audited standard unqualified report on such consolidated and unaudited consolidating figures as financial statements of the end Company and its Subsidiaries of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, PriceWaterhouseCoopers or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants")Required Purchasers, which report shall be (i) state that the audit of such accountants in connection with such consolidated financial statements has been conducted in accordance with generally accepted auditing standards and that such accountants believe that such audit provides a reasonable basis for their opinion, (ii) contain the other statements required from time to time by the American Institute of Certified Public Accountants for an auditor's standard unqualified as to going concern and scope of audit opinion (and shall state not contain any additional explanatory paragraph concerning uncertainties or other matters) and (iii) include the opinion of such accountants that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position of such Credit Parties the Company and its Subsidiaries as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year year, in conformity with GAAP and that the examination by the Accountants in connection GAAP;
(c) together with such consolidated each delivery of financial statements has pursuant to Section 7(b) and within 45 days after the end of each fiscal quarter of the Company, an Officer's Certificate which shall:
(i) certify that such financial statements have been made prepared in accordance with generally accepted auditing standards, GAAP applied on a consistent basis in accordance with past practices throughout the periods covered thereby and (y) present fairly in all material respects the case consolidated financial position and the consolidated results of such unaudited consolidating financial statements, Certified by the Chief Financial Officer operations and cash flows of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not Company and its Subsidiaries as at the end of and for the periods covered thereby in conformity with generally accepted accounting principles as then in effect (subject, in the case of any unaudited financial statements, to normal year end and audit adjustments and the omission of footnotes and a statement of changes in stockholders' equity);
(ii) state that, after due inquiry, the signers do not have knowledge of the existence, during the fiscal period covered by such fiscal year there existed financial statements or as at the date of such Officer's Certificate, of (A) any "reportable condition" (as defined in Statement on Auditing Standards No. 60 issued by the Auditing Standards Board of the American Institute of Certified Public Accountants) in internal control structure of the Company or any of its Subsidiaries, (B) any Change of Control or (C) any Default or Event of Default resulting from a breach or violation of any of Sections 10.1Default, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existedis not the case, specifying in reasonable detail the nature and period of existence thereof and what action the Company or the applicable Credit Party Subsidiary has taken, is taking or and proposes to take with respect thereto; and
(iii) show in reasonable detail all computations required to demonstrate compliance, during and at the end of the fiscal period covered by such financial statements, with the provisions of Sections 14.5, 14.6, 14.7 and 14.14;
(d) as promptly as practicable (but in any event not later than five Business Days) after receipt thereof, copies of all management letters with respect to the Company or any of its Subsidiaries submitted by independent accountants;
(e) concurrently with within forty-five (45) days after the financial statements furnished pursuant to subsections (b) and (c) close of this Section 7, a brief management discussion and analysis each fiscal quarter of the financial condition and results of operations of Company, the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating Company shall deliver to the Credit Parties occurring during such periodPurchasers the most recently published Soundscan ratings as they relate to the Christian music market;
(f) within thirty (30) days after the close of the fiscal quarter during which Celebration acquires assets of an aggregate fair market value in excess of $2,500,000, the Company shall provide the Purchasers notice of the same;
(g) at such time as any securities of the Company or any of its Subsidiaries are publicly held, as promptly as practicable (but in any event not later than five Business Days) after the same are available and in any event within 10 days thereofavailable, copies of (i) all such material press releases issued by the Company or any of its Subsidiaries, and all notices, proxy statements, financial statements, notices reports and reports documents as any Credit Party the Company shall send or make available generally to their security holdersits stockholders or as any of its Subsidiaries shall send or make available generally to its stockholders, other than its parent corporation, and copies of (ii) all regular periodic and periodic reports special reports, documents and of all registration statements (other than on Form S-8 or a similar formS-8) which the Company or any Credit Party may file of its Subsidiaries furnishes or files, or any officer, director or stockholder of the Company or any of its Subsidiaries furnishes or files with respect to the Company or any of its Subsidiaries, with the SEC Commission (or with any analogous foreign governmental authority) or any securities exchange;
(gh) as promptly after the receipt thereof by any Credit Party, and as practicable (but in any event within 10 days not later than five Business Days) after any officer or senior management employee of the Company or any of its Subsidiaries becomes aware of the occurrence of any of the following conditions or events, an Officer's Certificate specifying in reasonable detail the nature and period of existence thereof, copies what action the Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto: (i) with respect to any Plan, any reportable event, as defined in Section 4043(b) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; (ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or (iii) any event, transaction or condition which constitutes the failure to satisfy obligations under Title I of ERISA or that could result in the incurrence of any management letters and liability by the Company or any reports as ERISA Affiliate pursuant to material inadequacies IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in accounting controls (including reports as to the absence imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such inadequacies) submitted to any penalty or excise tax provisions, if such corporation by the Accountants in connection liability or Lien, taken together with any audit of other such corporation made by the Accountantsliabilities or Liens then existing, has resulted in, or could reasonably be expected to result in, a Material Adverse Change;
(hi) promptly (and in any event within 5 days) not later than five Business Days after becoming aware the Company obtains knowledge of (1) the existence occurrence of any Default or Event of Default on the part of any Credit PartyDefault, an Officer's Certificate of the Company specifying in reasonable detail the nature and period of existence thereof and thereof, what action the applicable Credit Party Company or any of its Subsidiaries has taken, is taking or and proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due thereto and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what actiondate, if any, on which it is estimated the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to same will be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be givenremedied;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not no later than 30 (30) days after the beginning commencement of each fiscal year of the Company), (1) a copy draft of the annual budget or business plan for such fiscal year for the Company and its Subsidiaries, including a projected consolidated and consolidating budget of the Credit Partiesbalance sheet, in each case prepared by the Company income statement, and cash flow statement for such fiscal year, and all amendments thereto which may be in effect from time to time;
on a month by month basis, and, (n2) at least once in promptly during each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained revisions thereto approved by the Credit Parties, together with a certificate Board of insurance evidencing the effectiveness Directors of the policies of insurance required to be maintained by the provisions of Section 9.4(a)Company;
(ok) together with each delivery not later than five Business Days after the occurrence of financial statements pursuant any condemnation, taking or destruction of or damage to subsection (bwhether or not covered by insurance) any properties or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 assets of the Intellectual Property Security Agreement, together with Company or any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with its Subsidiaries having a value equal to or greater than the Material Loss Amountin excess of $250,000, an Officer's Certificate specifying in reasonable detail the nature of such event, what action the Company describing or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto and the nature and status of such occurrencedate, if any, on which it is estimated the same will be remedied;
(ql) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise such other material information relating to the Transactions;
Company or any of its Subsidiaries as shall be furnished to any bank, financial institution or other Person to which the Company or any of its Subsidiaries is indebted for borrowed money or for any letters of credit or similar instruments (r) other than information relating solely to collateral therefor including, without limitation, borrowing base certificates and financial statements otherwise delivered to the extent not otherwise provided for in Purchasers pursuant to the terms of Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party7 hereof); and
(sm) any such other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may information as from time to time may reasonably request and which is capable be requested by the Required Holders of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed thatthe Notes, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofWarrant Shares.
Appears in 1 contract
Samples: Securities Purchase Agreement (Integrity Media Inc)
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g)each Purchaser, so long as they such Purchaser shall hold any Warrants or any shares of Warrant Stock):the Securities, and to each other holder from time to time of the Securities:
(a) as soon as available and in any event (i) within 30 50 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries monthly accounting period and (ii) 60 days after the Parent end of each quarterly accounting period, in each fiscal year of the Company, the consolidated balance sheets of the Company and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such month period and the related consolidated and consolidating statements of income operations, stockholders' equity and cash flows for such month period and for the portion of the such fiscal year ended with on the last day of such monthperiod, and stating in each case setting forth in comparative form the corresponding figures for the same period and portion of the next preceding fiscal year (commencing with the financial statements for periods ending after May 26, 2000) and the corresponding figures from the consolidated budget budgets for such period and for the prior year, all Certified by the Chief Financial Officer of the Parentfiscal year which includes such period;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies of Company, the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, in each case, year and the related audited consolidated and unaudited consolidating statements of incomeoperations, shareholdersstockholders' equity and cash flows for such fiscal year, and in each case setting forth in comparative form the notes theretocorresponding figures for the next preceding fiscal year (commencing with the financial statements for the fiscal year ended October 27, 2000), all in reasonable detail and stating in comparative form (i) accompanied by the respective audited standard unqualified report on such consolidated and unaudited consolidating figures as financial statements of the end Company and its Subsidiaries of and for the previous fiscal year or part thereof and Ernst & Young L.L.P. (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent Company and reasonably acceptable satisfactory to the Purchaser (the "Accountants"Required Holders of each class of Securities), which report shall be (i) state that the audit of such accountants in connection with such consolidated financial statements has been conducted in accordance with generally accepted auditing standards and that such accountants believe that such audit provides a reasonable basis for their opinion, (ii) contain the other statements required from time to time by the American Institute of Certified Public Accountants for an auditor's standard unqualified as to going concern and scope of audit opinion (and shall state not contain any additional explanatory paragraph concerning uncertainties or other matters), (iii) include the opinion of such accountants that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position of such Credit Parties the Company and its Subsidiaries as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year year, in conformity with GAAP and (iv) be accompanied by a separate certificate from such accountants which shall state (A) that such accountants are familiar with the examination by terms of the Accountants in connection Operative Documents and provide negative assurance relative to compliance with such consolidated financial statements has been made in accordance with generally accepted auditing standards, the applicable covenants of the Operative Documents as they relate to accounting matters and (yB) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as their examination has disclosed the existence, during or at the end of such the fiscal year there existed covered by such financial statements and/or the date of such certificate, of (x) any "reportable condition" (as defined in Statement on Auditing Standards No. 60 issued by the Auditing Standards Board of the American Institute of Certified Public Accountants) in the internal control structure of the Company or any of its Subsidiaries, (y) any Change of Control or (z) any Default or Event of Default resulting from and, if their examination has disclosed such a breach condition or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such defaultevent, specifying in reasonable detail the nature and status period of existence thereof;
(dc) concurrently together with the each delivery of financial statements furnished pursuant to subsections (bSections 7(a) and (c) of this Section 77(b), an Officer's Officers' Certificate which shall:
(i) certify that such financial statements have been prepared in accordance with GAAP (subject, in the case of any unaudited financial statements, to normal year-end and audit adjustments and the omission of footnotes) applied on a consistent basis throughout the periods covered thereby and present fairly in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Company stating and its Subsidiaries as at the end of and for the periods covered thereby in conformity with GAAP (subject, in the case of any unaudited financial statements, to normal year-end and audit adjustments and the omission of footnotes);
(ii) state that, based upon after due inquiry, the signers do not have knowledge of the existence, during the fiscal period covered by such examination financial statements or investigation and review as at the date of this Agreement as such Officers' Certificate, of (A) any "reportable condition" in the opinion internal control structure of the signer is necessary to enable the signer to express an informed opinion with respect theretoCompany or any of its Subsidiaries, no (B) any Change of Control or (C) any Default or Event of Default exists or has existed during such period Default, or, if such a Default or Event of Default shall exist or have existedis not the case, specifying in reasonable detail the nature and period of existence thereof and what action the Company or the applicable Credit Party Subsidiary has taken, is taking or and proposes to take with respect thereto;
(eiii) concurrently in the case of each such Officers' Certificate accompanying the quarterly financial statements delivered pursuant to Section 7(a) and the annual financial statements delivered pursuant to Section 7(b):
(A) show in reasonable detail all computations required to demonstrate compliance, during and at the end of the fiscal period covered by such financial statements, with the financial statements furnished pursuant to subsections provisions of Sections 14.5, 14.6, and 14.15; and
(bB) and (c) of this Section 7, a brief management include in reasonable detail management's discussion and analysis of the financial condition and results of operations and the financial condition of the Credit Parties, Company and its Subsidiaries as of at the end of and for the fiscal period covered by such financial statements (statements, including a comparison thereof with discussion of any significant variation from the financial condition and results of operations budgets for such period delivered pursuant to section 7(h); and
(iv) if there shall exist any Subsidiary of the Credit Parties, Company as of the end date of and for such Officers' Certificate which did not exist as of the comparable period in date of the prior fiscal yearlast Officers' Certificate delivered pursuant to this Section 7(c), specify with respect to each such Subsidiary the information called for by Exhibit 7(c)(iv) and describing any significant events relating to contain a brief description of the Credit Parties occurring during nature of each such periodSubsidiary's business;
(fd) as promptly after the same are available and as practicable (but in any event within 10 days not later than fifteen (15) days) after receipt thereof, copies of all material reports or written comments (including, without limitation, audit reports, so-called management letters and any other reports or communications with respect to the internal control structure of the Company or any of its Subsidiaries) submitted by independent accountants or other management consultants;
(e) at such time as any securities of the Company or any Subsidiary of the Company are publicly held, as promptly as practicable (but in any event not later than five days) after the same are available, copies of (i) all material press releases issued by the Company or any Subsidiary of the Company, and all notices, proxy statements, financial statements, notices reports and reports documents as any Credit Party the Company shall send or make available generally to their security holdersits stockholders or as any Subsidiary of the Company shall send or make available generally to its stockholders other than the Company and (ii) all periodic and special reports, documents and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar formS-8) which the Company or any Credit Party may file Subsidiary of the Company furnishes or files, or any officer or director or stockholder of the Company or any of its Subsidiaries furnishes or files with respect to the Company or any of its Subsidiaries, with the SEC Commission (or with any analogous foreign governmental authority) or any securities exchange;
(gf) as promptly after the receipt thereof by any Credit Party, and as practicable (but in any event within 10 days not later than fifteen (15) days) after any executive officer of the Company or any of its Subsidiaries becomes aware of the occurrence of any of the following conditions or events, an Officers' Certificate specifying in reasonable detail the nature and period of existence thereof, copies what action the Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto: (i) with respect to any Plan, any reportable event, as defined in Section 4043(b) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof, (ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or (iii) any event, transaction or condition that could result in the incurrence of any management letters and liability by the Company or any reports as ERISA Affiliate pursuant to material inadequacies Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in accounting controls (including reports as to the absence imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such inadequacies) submitted to any penalty or excise tax provisions, if such corporation by the Accountants in connection liability or Lien, taken together with any audit of other such corporation made by the Accountantsliabilities or Liens then existing, has resulted in, or could reasonably be expected to result in, a Material Adverse Change;
(hg) as promptly as practicable (and but in any event within 5 not later than three days) after becoming aware any officer or management employee of (1) the existence Company or any of its Subsidiaries obtains knowledge of the occurrence of any Default or Event of Default on the part Default, or of any Credit Partycondition or event which has resulted in, or could reasonably be expected to result in, a Material Adverse Change, an Officer's Officers' Certificate of the Company specifying in reasonable detail the nature and period of existence thereof and thereof, what action the applicable Credit Party Company or any of its Subsidiaries has taken, is taking or and proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due thereto and payable before its expressed maturitythe date, or any holder of such Indebtedness having if any, on which it is estimated the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect theretosame will be remedied;
(i) as promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are practicable (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and but in any event not later than 30 days after the beginning first day of each fiscal year of the CompanyCompany (commencing with the fiscal year which begins on October 28, 2000)), (A) an annual operating budget prepared on a copy of monthly basis for the Company and its Subsidiaries for such fiscal year and (B) projections representing a consolidated and consolidating budget of the Credit Parties, in each case prepared reasonable estimate by the Company of the future financial performance of the Company and its Subsidiaries for each of the three succeeding fiscal years and (ii) promptly upon preparation thereof, any other significant budgets and/or projections which the Company or any of its Subsidiaries prepares and any revisions of such fiscal year, and all amendments thereto which may be in effect from time to timeannual or other budgets and/or projections;
(ni) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent such other material information and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise notices relating to the Transactions;
(r) Company and/or any of its Subsidiaries as shall be furnished to or received from any bank, financial institution or other Person to which the Company or any of its Subsidiaries is indebted for borrowed money, including, without limitation, any notice of default or event of default or any claim for indemnification, such information and notices to be furnished to the extent not otherwise provided for in Section 14.7holders of the Securities at the same time as it is furnished to, as soon as availableor immediately after it is received from, any press release such bank, financial institution or other public announcement Person or statement by any Credit Partyparty; and
(sj) any such other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may information as from time to time may reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours requested by any holder of Notes or Warrants Purchaser or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofSignificant Holder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Booth Creek Ski Holdings Inc)
Financial Statements and Information. The Company will Borrower shall furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding Agent and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):Lenders:
(a) as soon as available and in any event within 30 fifty (50) days after the end of each month, copies of the consolidated and consolidating first three quarter-annual periods of each fiscal year of Borrower, balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Companies as of the end of such month period and the related consolidated and consolidating statements of income for such month (loss), stockholders' equity and cash flow for the portion of the quarter and fiscal year ended to date periods, all prepared on a Consolidated basis, in accordance with the last day of such monthGAAP, and stating in comparative form the corresponding figures from the consolidated budget for such period and detail reasonably satisfactory to Agent and the prior year, all Certified Lenders and certified by the Chief a Financial Officer of the ParentBorrower;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period ninety (other than the fourth quarterly accounting period90) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of Borrower, an annual audit report of the Parent,Companies for that year prepared on a Consolidated and consolidating basis (provided that consolidating statements may be internally prepared and need not be certified by independent public accountants and shall not be required to be delivered until one hundred forty (140) days after the close of the fiscal year of Borrower ending March 31, 2003 and one hundred (100) days after the close of each fiscal year of Borrower thereafter), in accordance with GAAP, and in form and detail reasonably satisfactory to Agent and the Lenders and certified by an independent public accountant satisfactory to Agent, which report shall include balance sheets and statements of income (loss), stockholders' equity and cash-flow for that period, together with a certificate by the accountant setting forth the Defaults and Events of Default coming to its attention during the course of its audit or, if none, a statement to that effect;
(c) within thirty (30) days after the end of each month, or at such other time as Agent may reasonably request, (i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case a Borrowing Base Certificate prepared as of the end of such fiscal yearmonth by a Financial Officer of Borrower, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) a summary Accounts aging report, in form and substance reasonably satisfactory to the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied Lenders and signed by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereofBorrower;
(d) concurrently with the delivery of the financial statements furnished pursuant to set forth in subsections (a) and (b) and (c) of this Section 7above, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect theretoCompliance Certificate;
(e) concurrently with the delivery of the quarterly and annual financial statements furnished pursuant to in subsections (a) and (b) and (c) of this Section 7above, a brief copy of any management discussion and analysis report, letter or similar writing furnished to the Companies by the accountants in respect of the Companies' systems, operations, financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such periodor properties;
(f) promptly within sixty (60) days after the same are available and end of each fiscal year of Borrower, annual budget projections of the Companies for the then current fiscal year, to be in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally form reasonably acceptable to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchangeAgent;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release copies of all notices, reports, definitive proxy or other public announcement statements and other documents sent by Borrower to its shareholders, to the holders of any of its debentures or statement bonds or the trustee of any indenture securing the same or pursuant to which they are issued, or sent by Borrower (in final form) to any Credit Partysecurities exchange or over the counter authority or system, or to the SEC or any similar federal agency having regulatory jurisdiction over the issuance of Borrower's securities; and
(sh) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs within thirty (30) days of the Credit Parties that written request of Agent or any Lender, such other information about the Purchaser financial condition, properties and operations of any Company as Agent or such Lender may from time to time reasonably request request, which information shall be submitted in form and which is capable of being obtained, produced detail reasonably satisfactory to Agent or generated by such Credit Party or of which any of them has knowledge. It is further understood Lender and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated certified by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year Financial Officer of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to or Companies in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofquestion.
Appears in 1 contract
Samples: Credit Agreement (Pioneer Standard Electronics Inc)
Financial Statements and Information. The Company will Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Ad ministrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies of the audited consolidated its Consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidating Balance Sheets as of at the end of such fiscal year, together with, in each case, with the related audited consolidated Con solidated and unaudited consolidating statements Consolidating Statements of incomeIncome, shareholdersChanges in Stockholders' equity Equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures Cash Flows as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at through the end of such fiscal year year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheet and Consolidated Statement of Income, Change in Stockholders' Equity and Cash Flow shall be audited and certified without qualification by the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and Accountants, which certification shall (i) state that the examination by the such Accountants in connection with such consolidated Con solidated financial statements has been made in accordance with generally accepted auditing standardsstandards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (yii) in include the case opinion of such unaudited consolidating financial statementsAccountants that such Consolidated xxxxx cial statements have been prepared in accordance with GAAP in a manner consistent with prior fiscal periods, Certified except as otherwise specified in such opinion. The Consolidating Balance Sheets and Consolidating Statements of Income, Changes in Stockholders' Equity and Cash Flows shall be certified by the Chief a Financial Officer of the Parent; andBorrower, as being complete and correct in all material respects and as presenting fairly the Consolidating financial condition and the Consolidating results of operations of the Borrower and its Subsidiaries. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to furnish Consolidated and Consolidating Balance Sheets and Consolidated and Consolidating Statements of Income, Changes in Stockholders' Equity and Cash Flows by furnishing copies of the Borrower's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, provided the Borrower is required to file such annual report on Form 10-K with the SEC and such filing is actually made.
(iib) a written statement As soon as available, but in any event within 45 days after the end of each of the Accountants (x) setting forth computations in reasonable detail showing whether or not first three fiscal quarters of each fiscal year, a copy of the Xxxxxxx dated and Consolidating Balance Sheets of the Borrower as at the end of each such quarterly period, together with the related Consolidated and Consolidating Statements of Income and Cash Flows for such period and for the elapsed portion of the fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1through such date, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that setting forth in making each case in comparative form the examination necessary figures for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any corresponding periods of the termspreceding fiscal year, covenants, provisions or conditions of this Agreement or any certified by a Financial Officer of the other Note DocumentsBorrower, or if such Accountants shall have obtained knowledge of any such default, specifying as being complete and correct in all material respects and as presenting fairly the nature Consolidated and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidating financial condition and the Consolidated and Consolidating results of operations of the Credit Parties, as Borrower and its Subsidiaries. Notwithstanding any of the end foregoing, the Borrower may satisfy its obligation to furnish quarterly Consolidated Balance Sheets and Con solidated Statements of Income and for the period covered Cash Flows by such financial statements (including a comparison thereof with the financial condition and results of operations furnishing copies of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than Borrower's quarterly report on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and 10-Q in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit respect of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year)quarter, together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for required to be attached thereto, provided the Borrower is required to file such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together quarterly report on Form 10-Q with the related consolidated statements of income, shareholders' equity SEC and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that such filing is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofactually made.
Appears in 1 contract
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as As soon as available and in any event within 30 available, but not later than one hundred twenty (120) days after the end of each monthfiscal year (commencing with the fiscal year ended December 31, copies 2000), audited consolidated financial statements for Borrower and its Subsidiaries, which statements shall contain a copy of the balance sheet as of the end of such year and the related consolidated statements of income or operations, shareholders' equity and consolidating balance sheets cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the opinion of a recognized independent public accounting firm reasonably acceptable to the Lender (the "Independent Auditor") which opinion shall state that such consolidated financial statements present fairly the financial position of Borrower for the periods indicated in conformity with GAAP. Such opinion shall not be limited because of a restricted or limited examination by the Independent Auditor of any material portion of Borrower's records. Borrower may satisfy its obligations under this Section 7.1(a) by delivering to Lender its annual report or Form 10-K as filed with the SEC.
(b) As soon as available, but not later than sixty (60) days after the end of each of the first three Fiscal Quarters of each fiscal year (i) commencing with the Parent Fiscal Quarter ended March 31, 2001), unaudited consolidated financial statements for Borrower and its Subsidiaries Subsidiaries, which statements shall contain a copy of the balance sheet as of the end of such quarter and the related statements of income and cash flows for the period commencing on the first day and ending on the last day of such quarter, and certified by Borrower's chief financial officer as fairly presenting the financial position and the results of operations of Borrower. Borrower may satisfy its obligations under this Section 7.1(b) by delivering to Lender its quarterly report on Form 10-Q filed with the SEC.
(iic) As soon as available, but not later than thirty (30) days after the Parent end of the first two months of each Fiscal Quarter (commencing with February, 2001), unaudited consolidated financial statements for Borrower and its Subsidiaries (other than Subsidiaries, which statements shall contain a copy of the Restaurant Subsidiaries), in each case balance sheet as of the end of such month and the related consolidated and consolidating statements of income for such month income, cash and cash forecasts for the portion of period commencing on the fiscal year ended with first day and ending on the last day of such month, and stating in comparative form certified by Borrower's chief financial officer as fairly presenting the corresponding figures from the consolidated budget for such period financial position and the prior year, all Certified by the Chief Financial Officer results of the Parent;operations of borrower.
(bd) as As soon as available and in any event within 45 available, but not later than thirty (30) days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries)month, in each case as of the end of such accounting perioda certified aging report on all Receivables, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated Borrower's chief financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants")officer, which report shall be unqualified as also include an identification of any Receivables (including the identity of the Person obligated thereunder) owed by a Person not previously obligated to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, Lender under any Receivable set forth (with respect to any aging report other than the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (yinitial aging report delivered hereunder) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their immediately preceding aging report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofdelivered hereunder.
Appears in 1 contract
Samples: Credit Agreement (Lendingtree Inc)
Financial Statements and Information. The Holding Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid you in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g)duplicate, so long as they you shall be obligated to purchase Securities hereunder or shall hold any Warrants or any shares of Warrant Stock):the Securities, and to each other institutional holder from time to time of the Securities:
(a) as soon as available and in any event within 30 60 days after the end of each monthof the first three quarterly accounting periods in each fiscal year of the Holding Company, copies of the consolidated and consolidating balance sheets of each of (i) the Parent Holding Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholderschanges in stockholders' equity and cash flows for such accounting period and for the portion of the such fiscal year ended with on the last day of such accounting period, all in reasonable detail and stating each case setting forth in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from for the consolidated budget for such periodsame period and portion of the next preceding fiscal year, all Certified provided that the delivery by the Chief Financial Officer Holding Company of a true and complete copy of its Form 10-Q report as filed with the Parent, and
Commission (iior any analogous foreign governmental authority) a written statement or any securities exchange within the time period specified by the Commission (or such foreign governmental authority) or such securities exchange shall be deemed compliance with the requirements of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereofthis section 7(a);
(cb) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies of Holding Company, the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Holding Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, in each case, year and the related audited consolidated and unaudited consolidating statements of income, shareholderschanges in stockholders' equity and cash flows for such year, in each case setting forth in comparative form the corresponding figures for the next preceding fiscal year and the corresponding figures from the budget for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) accompanied by the respective audited standard unqualified report on such consolidated and unaudited consolidating figures as financial statements of the end Holding Company and its Subsidiaries of and for the previous fiscal year or part thereof and Price Waterhouse LLP (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent Holding Company, provided that the delivery by the Holding Company of a true and reasonably acceptable to complete copy of its Form 10-K report as filed with the Purchaser Commission (or any analogous foreign governmental authority) or any securities exchange within the "Accountants")time period specified by the Commission (or such foreign governmental authority) or such securities exchange shall be deemed compliance with the requirements of this section 7(b) other than clause (iv) hereof, which report shall be (i) state that the audit of such accountants in connection with such consolidated financial statements has been conducted in accordance with generally accepted auditing standards and that such accountants believe that such audit provides a reasonable basis for their opinion, (ii) contain the other statements required from time to time by the American Institute of Certified Public Accountants for an auditor's standard unqualified as to going concern and scope of audit opinion (and shall state not contain any additional explanatory paragraph concerning uncertainties or other matters), (iii) include the opinion of such accountants that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position of such Credit Parties the Holding Company and its Subsidiaries as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year year, in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsGAAP, and (yiv) in be accompanied by a separate certificate from such accountants which shall state (A) that such accountants are familiar with the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer terms of the Parent; and
(ii) a written statement Operative Documents and provide negative assurance relative to compliance with the applicable covenants of the Accountants Operative Documents as they relate to accounting matters and (xB) setting forth computations in reasonable detail showing whether or not as their examination has disclosed the existence, during or at the end of such the fiscal year there existed covered by such financial statements and/or the date of such certificate, of (x) any "reportable condition" (as defined in Statement on Auditing Standards No. 60 issued by the Auditing Standards Board of the American Institute of Certified Public Accountants) in the internal control structure of the Holding Company or any of its Subsidiaries, (y) any Change of Control or (z) any Default or Event of Default resulting from and, if their examination has disclosed such a breach condition or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such defaultevent, specifying in reasonable detail the nature and status period of existence thereof;
(dc) concurrently together with the each delivery of financial statements furnished pursuant to subsections (bsections 7(a) and (c) of this Section 77(b), an Officer's Certificate which shall:
(i) certify that such financial statements have been prepared in accordance with GAAP (subject, in the case of any unaudited financial statements, to normal year-end and audit adjustments and the omission of footnotes) applied on a consistent basis throughout the periods covered thereby and present fairly in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Holding Company stating and its Subsidiaries as at the end of and for the periods covered thereby in conformity with GAAP (subject, in the case of any unaudited financial statements, to normal year-end and audit adjustments and the omission of footnotes);
(ii) state that, based upon after due inquiry, the signers do not have knowledge of the existence, during the fiscal period covered by such examination financial statements or investigation and review as at the date of this Agreement such Officer's Certificate, of (A) any "reportable condition" (as defined in Statement on Auditing Standards No. 60 issued by the Auditing Standards Board of the American Institute of Certified Public Accountants) in the opinion internal control structure of the signer is necessary to enable the signer to express an informed opinion with respect theretoHolding Company or any of its Subsidiaries, no (B) any Change of Control or (C) any Default or Event of Default exists or has existed during such period Default, or, if such a Default or Event of Default shall exist or have existedis not the case, specifying in reasonable detail the nature and period of existence thereof and what action the Holding Company or the applicable Credit Party Subsidiary has taken, is taking or and proposes to take with respect thereto;
(eiii) concurrently in the case of each such Officers' Certificate accompanying the quarterly financial statements delivered pursuant to section 7(a) and the annual financial statements delivered pursuant to section 7(b):
(A) show in reasonable detail all computations required to demonstrate compliance, during and at the end of the fiscal period covered by such financial statements, with the financial statements furnished provisions of section 13.5, 13.6, and 13.14; and
(B) unless already included in the relevant Form 10-Q report or 10-K report delivered pursuant to subsections (b) and (c) of this Section 7hereto, a brief management include in reasonable detail management's discussion and analysis of the financial condition and results of operations and the financial condition of the Credit Parties, Holding Company and its Subsidiaries as of at the end of and for the fiscal period covered by such financial statements statements; and
(including a comparison thereof with the financial condition and results of operations iv) if there shall exist any Subsidiary of the Credit Parties, Holding Company as of the end date of and for such Officer's Certificate which did not exist as of the comparable period in date of the prior fiscal yearlast Officer's Certificate delivered pursuant to this section 7(c), specify with respect to each such Subsidiary the information called for by Exhibit 7(c)(iv), contain a brief description of the nature of each such Subsidiary's business and describing certify that each such new Subsidiary has executed and delivered pursuant to section 13.17 a Note Guarantee to each holder of any significant events relating to the Credit Parties occurring during such periodNotes;
(fd) as promptly after the same are available and as practicable (but in any event within 10 days not later than five Business Days) after receipt thereof, copies of all material reports or written comments (including, without limitations, audit reports, so-called management letters and any other reports or communications with respect to the internal control structure of the Company or any of its Subsidiaries) submitted by independent accountants or other management consultants;
(e) at such time as any securities of the Holding Company or any of its Subsidiaries are publicly held, as promptly as practicable (but in any event not later than five Business Days) after the same are available, copies of (i) all material press releases issued by the Holding Company or any Subsidiary of the Holding Company, and all notices, proxy statements, financial statements, notices reports and reports documents as any Credit Party the Holding 77 Company shall send or make available generally to their security holdersits stockholders or as any Subsidiary of the Holding Company shall send or make available generally to its stockholders, other than the Holding Company, and copies of (ii) all regular periodic and periodic reports special reports, documents and of all registration statements (other than on Form S-8 or a similar formS-8) which the Holding Company or any Credit Party may file Subsidiary of the Holding Company furnishes or files, or any officer, director or stockholder of the Holding Company or any of its Subsidiaries furnishes or files with respect to the Holding Company or any of its Subsidiaries, with the SEC Commission (or with any analogous foreign governmental authority) or any securities exchange, excluding the Forms 3, 4 and 5 filed by directors, officers and 10% stockholders of the Holding Company;
(f) as promptly as practicable (but in any event not later than five Business Days) after any officer or senior management employee of the Holding Company or any of its Subsidiaries becomes aware of the occurrence of any of the following conditions or events, an Officer's Certificate specifying in reasonable detail the nature and period of existence thereof, what action the Holding Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto: (i) with respect to any Plan, any reportable event, as defined in section 4043(b) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; (ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Holding Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or (iii) any event, transaction or condition that could result in the incurrence of any liability by the Holding Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Holding Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, has resulted in, or could reasonably be expected to result in, a Material Adverse Change;
(g) as promptly after the receipt thereof by any Credit Party, and as practicable (but in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 daysnot later than three Business Days) after becoming aware any officer or senior management employee of (1) the existence Holding Company or any of its Subsidiaries obtains knowledge of the occurrence of any Default or Event of Default on the part Default, or of any Credit Partycondition or event which has resulted in, or could reasonably be expected to result in, a Material Adverse Change, an Officer's Certificate of the Company specifying in reasonable detail the nature and period of existence thereof and thereof, what action the applicable Credit Party Holding Company or any of its Subsidiaries has taken, is taking or and proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due thereto and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what actiondate, if any, on which it is estimated the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to same will be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be givenremedied;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(mh) as soon promptly as available practicable (and but in any event not later than 30 days days) after the beginning end of each fiscal year of the Holding Company), an annual budget prepared on a copy monthly basis for the Holding Company and its Subsidiaries for the succeeding fiscal year and, promptly upon preparation thereof, any other significant budgets which the Holding Company or any of a consolidated its Subsidiaries prepares and consolidating budget any revisions of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to timeannual or other budgets;
(ni) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
as promptly as practicable (o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and but in any event within ten not later than five Business Days Days) after the occurrence of any Casualty condemnation, taking or Taking involving Property destruction of or damage to (whether or not covered by insurance) any Credit Party with properties or assets of the Holding Company or any of its Subsidiaries having a value equal to or greater than the Material Loss Amountin excess of $500,000, an Officer's Certificate of the Company describing specifying in reasonable detail the nature and status of such occurrenceevent, what action the Holding Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto and the date, if any, on which it is estimated the same will be remedied;
(qj) as promptly as practicable (and but in any event within 10 daysnot later than five Business Days) after receipt thereof, copies of all material notices and communications given or received by the Parent Holding Company or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed thatits Subsidiaries under the Acquisition Documents (including, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holderwithout limitation, copies of (i) all documents related to adjustments to the consolidated balance sheet of consideration paid under the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity Acquisition Agreement and cash flows for the fiscal year then ended, (ii) similar financial statements all notices and communications relating to claims of breaches and defaults and claims for such part indemnification given or received by the Holding Company or any of its Subsidiaries), or any of the two preceding fiscal years of the Parent (which financial statementsother agreements, documents and the financial statements instruments referred to in clause section 4.3;
(ik) such other material information relating to the Holding Company or any of this paragraph, its Subsidiaries as shall be audited furnished to any bank, financial institution or other Person to which the extent reasonably availableHolding Company or any of its Subsidiaries is indebted for borrowed money or for any letters of credit or similar instruments (other than information relating solely to collateral therefor), ; and
(iiil) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary as from time to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case time may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to reasonably be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing requested by the holder thereofRequired Holders of any class of Securities.
Appears in 1 contract
Financial Statements and Information. The Company Issuers will furnish to the each Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g)duplicate, so long as they such Purchaser shall be obligated to purchase Securities hereunder or shall hold any Warrants or any shares of Warrant Stock):the Securities (unless otherwise provided below), and to each other institutional holder from time to time of the Securities:
(a) Monthly Financial Statements - as soon as available and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries monthly accounting period (other than the Restaurant Subsidiaries)third, sixth, ninth or twelfth months) in each Fiscal Year (other than with regard to the first three months following the Closing Date, in which case within 45 days after the end of each case of such months) and the unaudited consolidated balance sheets of the Company and its Subsidiaries, as of at the end of such month period and the related unaudited consolidated and consolidating statements of income and consolidated statements of retained earnings and cash flows for such month period and for the portion of the fiscal year such Fiscal Year ended with on the last day of such monthperiod, and stating in each case setting forth in comparative form the corresponding figures for the same period and portion of the next preceding Fiscal Year and the corresponding figures from the consolidated budget for such period and the prior yearperiod, all Certified by the Chief Financial Officer of the Parentif any, delivered pursuant to Section 7(h);
(b) Quarterly Financial Statements - as soon as available and in any event within 45 30 days after the end of each quarterly accounting period in each Fiscal Year (other than with regard to the fourth quarterly accounting period) first Fiscal Quarter following the Closing Date, in each fiscal year which case within 45 days after the end of such Fiscal Quarter), the Parent,
(i) copies of the unaudited consolidated and consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such accounting period, together with, in each case, period and the related unaudited consolidated and consolidating statements of income, shareholders' equity income and retained earnings and cash flows for such accounting period and for the portion of the fiscal year such Fiscal Year ended with on the last day of such accounting period, all in reasonable detail and stating each case setting forth in comparative form (i) the consolidated corresponding figures for the same period and consolidating figures as portion of the end of next preceding Fiscal Year and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parentif any, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereofdelivered pursuant to Section 7(h);
(c) Annual Financial Statements - as soon as available and in any event within 90 days after the end of each fiscal year of Fiscal Year, the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries Subsidiaries, and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, in each case, year and the related audited consolidated and unaudited consolidating statements of income, shareholders' equity retained earnings and cash flows for such fiscal year, in each case setting forth in comparative form the corresponding figures for the preceding Fiscal Year and the notes theretocorresponding figures from the budget for such Fiscal Year, all in reasonable detail and stating in comparative form (i) accompanied by the respective audited standard unqualified report on such consolidated and unaudited consolidating figures as financial statements of the end of Company and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon its Subsidiaries of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent Company and reasonably acceptable satisfactory to the Purchaser (the "Accountants")Required Holders of each class of Securities, which report shall be unqualified as to going concern and scope of audit and shall (A) state that the audit of such accountants in connection with such consolidated financial statements has been conducted in accordance with generally accepted auditing standards and that such accountants believe that such audit provides a reasonable basis for their opinion, (B) contain the other statements required from time to time by the American Institute of Certified Public Accountants for an auditor's standard unqualified opinion (and shall not contain any additional explanatory paragraph concerning uncertainties or other matters), (C) include the opinion of such accountants that such consolidated and consolidating financial statements present fairly, fairly in all material respects, respects the consolidated financial position of such Credit Parties the Company and its Subsidiaries as at the end of such fiscal year Fiscal Year and the consolidated results of operations and cash flows for such fiscal year Fiscal Year, in conformity with GAAP GAAP, and (D) be accompanied by a separate certificate from such accountants which shall state that such accountants are familiar with the examination terms of the Operative Documents and provide, to their knowledge, negative assurance relative to compliance with the covenants set forth in Sections 14.7, 14.8, 14.9, and 14.16 of this Agreement and Section 7.14 of the Senior Bank Agreement, in each case, based solely on the auditing procedures performed by the Accountants in connection such accountants;
(d) together with such consolidated each delivery of financial statements has pursuant to Sections 7(a), 7(b) and 7(c), an Officer's Certificate which shall:
(i) certify that such financial statements have been made prepared in accordance with generally accepted auditing standardsGAAP (subject, and (y) in the case of such any unaudited consolidating financial statements, Certified by to normal year-end and audit adjustments and the Chief Financial Officer omission of footnotes) applied on a consistent basis throughout the periods covered thereby and present fairly in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Parent; and
(ii) a written statement of Company and the Accountants (x) setting forth computations in reasonable detail showing whether or not Subsidiaries as at the end of and for the periods covered thereby in conformity with GAAP;
(ii) state that, after due inquiry, the signers do not have knowledge of the existence, during the fiscal period covered by such fiscal year there existed financial statements or as at the date of such Officer's Certificate, of (A) any "reportable condition" in the internal control structure of the Parent or any of its Subsidiaries, (B) any Change of Control or (C) any Default or Event of Default resulting from a breach or violation of any of Sections 10.1Default, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existedis not the case, specifying in reasonable detail the nature and period of existence thereof and what action the Issuers or the applicable Credit Party Subsidiary has taken, is taking or and proposes to take with respect thereto;
(eiii) concurrently show in reasonable detail all computations required to demonstrate compliance, during and at the end of the fiscal period covered by such financial statements, with the financial statements furnished pursuant to subsections provisions of Sections 14.7, 14.8, 14.9, and 14.16; and
(biv) and (c) of this Section 7, include in reasonable detail a brief management discussion and analysis of the financial condition and results of operations and the financial condition of the Credit Parties, as of Issuers and the end of and for Subsidiaries during the fiscal period covered by such financial statements (statements, including a comparison thereof with the financial condition and results discussion of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating variation from the budgets for such period delivered pursuant to the Credit Parties occurring Section 7(h); and
(v) with respect to any Subsidiary acquired or formed during such period, the information on Exhibit 7(d)(v); provided, however, that the information specified in paragraphs (iii) and (iv) above may be provided on a quarterly basis in the Officer's Certificates accompanying (x) the financial statements for the months of March, June and September and (y) the financial statements required by Section 7(c);
(e) as promptly as practicable (but in any event not later than five days) after receipt thereof, copies of all final reports or final written comments (including, without limitation, audit reports, so-called management letters and any other reports or communications with respect to the internal control structure of the Issuers or any of the Subsidiaries, the release of which is hereby authorized by the Issuers) submitted by independent accountants or other management consultants, except to the extent of any legal or contractual restrictions upon such delivery;
(f) at such time as any securities of the Parent or any Subsidiary of the Parent are publicly held, as promptly as practicable (but in any event not later than five days) after the same are available and in any event within 10 days thereofavailable, copies of (i) all such material press releases issued by the Parent or any Subsidiary of the Parent, and all notices, proxy statements, financial statements, notices reports and reports documents as any Credit Party the Parent shall send or make available generally to their security holdersits stockholders or as any Subsidiary of the Parent shall send or make available generally to its stockholders other than the Parent and (ii) all periodic and special reports, documents and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar formS-8) which the Parent or any Credit Party may file Subsidiary of the Parent furnishes or files, or any officer or director or stockholder of the Parent or any of its Subsidiaries furnishes or files with respect to the Parent or any of its Subsidiaries, with the SEC Commission (or with any analogous foreign Governmental Authority) or any national securities exchange;
(g) as promptly after the receipt thereof by any Credit Party, and as practicable (but in any event within 10 not later than five days after obtaining knowledge thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence occurrence of any Default or Event of Default on the part Default, or of any Credit Partycondition or event which has resulted in, or could reasonably be expected to result in, a Material Adverse Change, an Officer's Certificate of the Company specifying in reasonable detail the nature and period of existence thereof and thereof, what action the Parent or the applicable Credit Party Subsidiary has taken, is taking or and proposes to take with respect thereto; thereto and the date, if any, on which it is estimated the same will be remedied;
(h) as promptly as practicable following the end of each Fiscal Year (but in any event not later than the earlier of (i) 30 days (60 days in the case of the budget for Fiscal Year 2004) of the end of such Fiscal Year or (2ii) the date such information is delivered to the Agent (as defined in the Senior Bank Agreement), an annual budget prepared on a monthly basis for the Company and its Subsidiaries for the succeeding Fiscal Year (displaying anticipated balance sheets and statements of income, and cash flows) and, promptly upon preparation thereof, any other significant budgets which the Company or any of its Subsidiaries prepares and any revisions of such annual or other budgets (including, any budgets or projections required to be prepared pursuant to the Senior Bank Agreement or any agreement evidencing a Permitted Refinancing thereof);
(i) as promptly as practicable (but in any event not later than five days) after the occurrence of any condemnation, taking or destruction of or damage to (whether or not covered by insurance) any Indebtedness properties and assets, which condemnation, taking or destruction of any Credit Party being declared due and payable before its expressed maturityor damage to exceeds $500,000, an Officer's Certificate specifying in reasonable detail the nature of such event, what action the Issuers or any holder of the Subsidiaries has taken, is taking and proposes to take with respect thereto and the date, if any, on which it is estimated the same will be remedied;
(j) as promptly as practicable (but in any event not later than five days) after receipt thereof, final copies of all material notices and communications given or received by the Issuers or any of the Subsidiaries under the Acquisition Documents;
(k) such Indebtedness having other material information relating to the right Issuers or any of the Subsidiaries as shall be furnished to declare any bank, financial institution or other Person to which the Issuers or any of the Subsidiaries is indebted for borrowed money or for any letters of credit (or similar instruments) (other than information relating solely to collateral therefor);
(l) promptly upon becoming aware of the occurrence of any:
(i) material "reportable event" (as such Indebtedness due and payable before its expressed maturityterm is defined in section 4043 of ERISA); or
(ii) prohibited transaction" (as such term is defined in section 406 or section 4975 of the Code);
(m) in connection with any Pension Plan or any trust created thereunder, because a written notice specifying the nature thereof, what action the Issuers or any ERISA Affiliate are taking or propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service, the United States Department of Labor or the PBGC with respect thereto, provided that such actions are reasonably likely to result in a Material Adverse Change;
(n) as promptly as practicable (but in any event not later than five days) after the occurrence of any default (or breach by any party to the Acquisition Agreement, or of any notice of, or of any condition or event whichwhich has resulted in, with notice and/or or could reasonably be expected to result in, an indemnity claim under the lapse of time, shall constitute Acquisition Agreement by any such default) under such Indebtednessparty thereto, an Officer's Certificate of the Company describing specifying in reasonable detail the nature and status period of such matters and existence thereof, what action the applicable Credit Party Issuers have taken, is taking or and proposes to take with respect thereto;
(io) promptly and in any event within 10 days after any Credit Party simultaneously with its delivery pursuant to the Senior Bank Agreement or any ERISA Affiliate knows oragreement evidencing a Permitted Refinancing thereof, a copy of each Availability Certificate (as defined in the case of Senior Bank Agreement or any agreement evidencing a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth Permitted Refinancing thereof) so delivered; and
(p) such other information as from time to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to time may reasonably be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) requested. Notwithstanding anything to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to contrary in this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to or information described in clause subdivisions (d)(iii), (g) and (i) of this paragraph, shall Section 7 need not be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity furnished from and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to after the date of resale of such upon which all Notes or Warrants (as the case may be). The Company have been paid and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated finally discharged in writing by the holder thereoffull in cash.
Appears in 1 contract
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred Within sixty (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f60) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as soon as available and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period"Fiscal Quarter") in of each fiscal year Fiscal Year, commencing with the first Fiscal Quarter after the date of this Agreement, the Board of Managers shall prepare and submit or cause to be prepared and submitted to the Members an unaudited statement of profit and loss for the Company for such Fiscal Quarter and an unaudited balance sheet of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Company dated as of the end of such accounting period, together withFiscal Quarter, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such case prepared in accordance with federal income tax accounting period and for the portion principles of the fiscal year ended with the last day of such accounting periodCode, all in reasonable detail and stating in comparative form consistently applied. Within one hundred twenty (i120) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year Fiscal Year during the term of this Agreement, the Parent,
Board of Managers shall prepare and submit or cause to be prepared and submitted to the Members (i) copies and audited balance sheet, together with audited statements of profit and loss, Members' equity and changes in financial position for the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and Company during such Fiscal Year; (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as a report of the end activities of the Company during the Fiscal Year; (iii) a report summarizing the fees and other remuneration paid by the Company for such Fiscal Year to the Board of Managers and any Affiliate thereof; and (iv) an audited statement showing any amounts distributed to the Members in respect of such fiscal year, together with, in each case, the related audited consolidated Fiscal Year. All such statements and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report reports shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, prepared in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity accordance with GAAP and that in accordance with the examination federal income tax basis of accounting. The Board of Managers shall provide to the Members such other reports and information concerning the business and affairs of the Company as may be required by the Accountants in connection with such consolidated Act or by any other law or regulation of any regulatory body applicable to the Company. All financial statements has been made prepared pursuant to this Section 12.3 shall present fairly the financial position and operating results of the Company and shall be prepared in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default principles on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of accrual basis for each fiscal year of the Company)Company during the term of this Agreement. All decisions as to accounting matters, a copy of a consolidated and consolidating budget of except as specifically provided to the Credit Partiescontrary herein, in each case prepared shall be made by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate chief executive officer of the Company describing and reviewed and approved by the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows Audit Committee of the institution Board of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofManagers.
Appears in 1 contract
Samples: Operating Agreement (Find SVP Inc)
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as soon as available Tenant shall deliver to Landlord and in to any event within 30 days after lender or purchaser designated by Landlord the end following information certified to be true, complete and correct by an officer of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event Tenant: within 90 days after the end of each fiscal year of the Parent,
(i) copies Tenant, a balance sheet of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Tenant and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case consolidated subsidiaries as of the end of such fiscal year, together witha statements of profits and losses of Tenant and its subsidiaries for such year, and an audited statement of cash flows of Tenant and its consolidated subsidiaries for such year, setting forth in each case, in comparative form, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows corresponding figures for such the preceding fiscal year, and the notes thereto, all year in reasonable detail and stating in comparative form (i) the respective audited consolidated scope and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon of Deloitte & Touche LLP, or other independent certified public accountants of recognized national standing selected by Tenant; and within 60 days after the Parent end of each fiscal quarter of Tenant a balance sheet of Tenant and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such its consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties subsidiaries as at the end of such fiscal year quarter, statements of profits and the losses of Tenant and its consolidated results subsidiaries for such quarter and a statement of operations and cash flows of Tenant and its consolidated subsidiaries for such fiscal year quarter, setting forth in conformity with GAAP each case, in comparative form, the corresponding figures for the similar quarter of the preceding year, in reasonable detail and that scope, and certified to be true and complete by a financial officer of Tenant having knowledge thereof; the examination by the Accountants in connection with such consolidated foregoing financial statements has been made all being prepared in accordance with generally accepted auditing standardsaccounting principles, consistently applied. If Tenant is a reporting company under the Securities and (y) in Exchange Act of 1934, as amended, the case foregoing annual reports of such unaudited consolidating financial statements, Certified this Paragraph 13.14 will be satisfied by the Chief Financial Officer delivery of Tenant’s forms 10-K, 10-Q and annual reports promptly upon their filing with the Parent; and
(ii) a written Securities and Exchange Commission. Together with the annual financial statements described above, Tenant shall deliver to Landlord an annual operating statement of the Accountants (x) setting forth computations Leased Premises in reasonable detail showing whether or not as at the end reasonably satisfactory to Landlord and certified to be true, complete and correct by an officer of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;Tenant.
(d) concurrently with the financial statements furnished pursuant to subsections (b) Upon ten (10) days’ prior written notice, Tenant will permit Landlord and (c) of this Section 7its professional representatives to visit Tenant’s offices, an Officer's Certificate of the Company stating thatand discuss Tenant’s affairs and finances with appropriate officers, based upon and will make available such examination or investigation and review of this Agreement information as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existedLandlord may reasonably request bearing on Tenant, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking Leased Premises or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year)Lease, and describing Landlord shall maintain the confidentiality of any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports information designated by Tenant as any Credit Party shall send or make available generally to their security holders“nonpublic”, and copies of all regular Landlord will execute and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as use its reasonable efforts to material inadequacies in accounting controls (including reports as cause Landlord’s professional representatives to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofexecute confidentiality agreements.
Appears in 1 contract
Samples: Lease Agreement (Silicon Image Inc)
Financial Statements and Information. The Company Such Borrower will furnish ------------------------------------ to each Bank, or to the Purchaser until all of the Obligations have been indefeasibly paid Agent which will in full and no Notes are outstanding and the Termination Date has occurred (and, with respect turn furnish to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Bank:
(a) as soon as available and in any event within 30 60 days after the end of each monththe first, copies of the consolidated second and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each third quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Parent,
(i) such Borrower, copies of the a consolidated and consolidating balance sheets sheet of each of (i) the Parent such Borrower and its Consolidated Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, period and of the related consolidated income and consolidating retained earnings statements of income, shareholders' equity such Borrower and cash flows for such accounting period and its Consolidated Subsidiaries for the elapsed portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and amounts for the corresponding date and period in the previous fiscal year year, and (ii) all prepared in accordance with GAAP, subject to year-end audit adjustments and certified by an authorized financial officer of such Borrower, provided that if the corresponding figures from Borrower is not incorporated in the consolidated budget for United -------- States, such period, all Certified by the Chief Financial Officer financial statements shall be prepared in accordance with accounting principles generally accepted in its country of the Parent, andincorporation.
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(cb) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) such Borrower, copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent such Borrower and its Consolidated Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited year and consolidated and unaudited consolidating statements of income, shareholders' equity income and cash flows retained earnings of such Borrower and its Consolidated Subsidiaries for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof prepared in accordance with GAAP and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing as may be selected by the Parent such Borrower and reasonably acceptable satisfactory to the Purchaser (Agent, provided that, if the "Accountants")Borrower is not incorporated in the United -------- States, which report such financial statements shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made prepared in accordance with accounting principles generally accepted auditing standardsin its country of incorporation and such financial statements may be unaudited, and provided further, that, -------- ------- if such Borrower is a Subsidiary of the Company, such financial statements may be unaudited;
(yc) concurrently with each of the financial statements furnished pursuant to the foregoing subsections (a) and (b), a certificate of the chairman, president, a vice president (whose duties are in the case finance area) or the treasurer or any assistant treasurer of such unaudited consolidating financial statementsBorrower, Certified by stating that in the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end opinion of such fiscal year there existed any Default or officer, based upon a review made under his supervision, no Event of Default resulting from a breach or violation event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default, has occurred and is continuing, and such Borrower has performed and observed all of, and such Borrower is not in default in the performance or observance of any of Sections 10.1of, 10.7the terms and covenants hereof or, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants Borrower shall have obtained knowledge of any such be in default, specifying all such defaults, and the nature and status thereof, of which the signer of such certificate may have knowledge;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7their being filed, an Officer's Certificate of the Company stating that, based upon such examination mailed or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Partiesdelivered, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereofapplicable, copies of all such proxy statements, financial statements, notices statements and reports as any Credit Party which such Borrower shall send or make available generally to their security holdersits shareholders, and copies of all regular reports on Forms 10-K, 10-Q and periodic 8-K and all other filings and reports and of all registration statements (other than on Form S-8 specifically requested by the Agent or a similar form) Bank which such Borrower or any Credit Party of its Subsidiaries may be required to file with the SEC Securities and Exchange Commission or any similar or corresponding governmental commission, department or an agency substituted therefor or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, exchange located in the case United States of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit PartyAmerica; and
(se) any such other information, including financial statements and computations, information relating to the performance of obligations arising under this Agreement and/or the business, affairs and financial condition of the Credit Parties that Company and its Subsidiaries as the Purchaser Agent (when requested so to do by any Bank) may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofrequest.
Appears in 1 contract
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):DELIVER TO THE BANKS:
(a) as soon as available available, and in any event within 30 120 days after the end of each monthfiscal year of Panhandle Eastern, copies a copy of the consolidated and consolidating balance sheets annual audit report of each of (i) the Parent Panhandle Eastern and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries)for such fiscal year containing a balance sheet, in each case as of the end of such month and the related consolidated and consolidating statements statement of income for such month and for the portion of the fiscal year ended with the last day of such month, stockholders equity and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior yeara cash flow statement, all Certified in reasonable detail and certified by PriceWaterhouseCoopers or another independent certified public accountant of recognized standing reasonably satisfactory to the Chief Financial Officer of the Parent;Banks; and
(b) as soon as available available, and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies Borrower, an unaudited financial report of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Borrower and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of Subsidiary for such fiscal yearyear containing a balance sheet, together with, in each case, the related audited consolidated statement of income and unaudited consolidating statements of income, shareholders' stockholders equity and cash flows for such fiscal year, and the notes theretoflow statement, all in reasonable detail and stating certified by a financial officer of such Loan Party to have been prepared in comparative form accordance with GAAP, except as may be explained in such certificate; and
(ic) the respective audited consolidated as soon as available, and unaudited consolidating figures as of in any event within 60 days after the end of and for the previous each quarterly accounting period in each fiscal year or part thereof of Panhandle Eastern and the Borrower (ii) excluding the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"fourth quarter), which an unaudited financial report shall be unqualified as to going concern of Panhandle Eastern and scope of audit its Subsidiaries and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties Borrower and its Subsidiaries as at the end of such fiscal year quarter and for the consolidated results period then ended, containing a balance sheet, statements of operations income and stockholders equity and a cash flows for flow statement, all in reasonable detail and certified by a financial officer of such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has Loan Party to have been made prepared in accordance with generally accepted auditing standardsGAAP, and (y) except as may be explained in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parentcertificate; and
(iid) a written statement of such additional financial or other information as the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such Banks may reasonably request. All financial statements they obtained no knowledge of any default by any Credit Party specified in the fulfillment of any of the termsclauses (a), covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) above shall be furnished in Consolidated form for Panhandle Eastern and its Subsidiaries and the Borrower and its Subsidiaries with comparative Consolidated figures for the corresponding period in the preceding year. Together with each delivery of this Section 7financial statements required by clauses (a), (b) and (c) above, each of Panhandle Eastern and the Borrower, as applicable, will deliver to the Banks an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, that there exists no Default or Event of Default exists or has existed during such period Default, or, if any such a Default or Event of Default shall exist or have existedDefault exists, stating the nature thereof, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party Borrower has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely . The Banks are authorized to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), deliver a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal yearany financial statement delivered to it to any regulatory body having jurisdiction over them, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as disclose same to any new trademark, patent and copyright registrations prospective assignees or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofparticipant Banks.
Appears in 1 contract
Samples: Credit Agreement (Panhandle Eastern Pipe Line Co Lp)
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies Borrower's annual report on Form 10 K in respect of the audited consolidated and unaudited consolidating such fiscal year, containing its Consolidated balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case sheet as of at the end of such fiscal year, together withwith the related Consolidated statements of operations, stockholders' equity and cash flows as of and through the end of such fiscal year, setting forth in each casecase in comparative form the figures for the preceding fiscal year, such Consolidated financial statements to be audited and certified without Impermissible Qualification by the Accountants.
(b) As soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a copy of the Borrower's quarterly report on Form 10 Q in respect of such fiscal quarter, containing the Consolidated balance sheet of the Borrower as at the end of each such quarterly period, together with the related audited consolidated and unaudited consolidating Consolidated statements of incomeoperations, shareholdersstockholders' equity and cash flows for such period and for the elapsed portion of the fiscal year, and the notes thereto, all year through such date (setting forth in reasonable detail and stating each case in comparative form (i) the respective audited consolidated and unaudited consolidating figures as for the corresponding periods of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such preceding fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), all of which report shall be unqualified as to going concern complete and scope of audit and shall state that such consolidated financial statements present fairly, correct in all material respects, respects and shall present fairly the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit Parties, as Borrower in accordance with GAAP (subject to normal year end adjustments and the absence of footnotes).
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Partiesfirst three fiscal quarters, as of and within 90 days after the end of the last fiscal quarter, of each fiscal year a Compliance Certificate certified by a Financial Officer.
(d) Prompt written notice if there shall occur and for be continuing any Event of Default.
(e) Prompt written notice of any citation, summons, subpoena, order to show cause or other document naming the comparable period in Borrower or any of its Subsidiaries a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the prior fiscal year)validity or enforceability of any of the Loan Documents, and describing any significant events relating include with such notice a copy of such citation, summons, subpoena, order to the Credit Parties occurring during such period;show cause or other document.
(f) promptly after the same are available and in any event within 10 days thereofPromptly upon becoming available, copies of all such proxy registration statements, financial statementsAnnual Reports to shareholders, notices 10 Ks, 10 Qs, 8 Ks, proxy materials and reports as other material documents which the Borrower or any Credit Party shall send of its Subsidiaries may now or make available generally hereafter be required to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 deliver to shareholders or a similar form) which any Credit Party may file with the SEC or with deliver to any securities exchange;exchange or the SEC.
(g) promptly after Prompt written notice in the receipt thereof by event that the Borrower, any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party Subsidiaries or any ERISA Affiliate knows orknows, in the case of a Pension Plan or has reason to know, that any event or condition described in Section 4.19 hereof has shall have occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Partywill occur, or any ERISA Affiliate condition exists, with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of respect to a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to the result of which could reasonably be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely expected to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;.
(mh) Prompt written notice upon the Borrower becoming aware of any change, withdrawal or reinstatement of any rating of Applicable Debt by S&P or Xxxxx'x.
(i) Such other information as soon as available (and in the Administrative Agent or any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect Lender shall reasonably request from time to time;
(n) at least once in each fiscal year, a . Each report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance and document required to be maintained delivered by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements Borrower pursuant to subsection subparagraphs (a), (b) or and (cf) of this Section 7, 7.1 shall be deemed to have been delivered on the date on which the Borrower notifies the Administrative Agent and the Lenders that such report or such document has been posted at a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of site (the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or address of which any of them has knowledge. It shall be contained in such notice) on the world wide web, which site is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated accessible by a holder thereof shall have the right to obtain widely held nationally recognized web browser, from the Parent, upon the written request of which such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall report or document may be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofreadily printed.
Appears in 1 contract
Samples: Credit Agreement (Kohls Corporation)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as soon as available and and, in any event event, within 30 90 days after following the end of each monthFiscal Year, copies of (i) for any Fiscal Year ending prior to the Consummation Date, consolidated and consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month Fiscal Year, and the related consolidated and consolidating (and, as to statements of income, consolidating) statements of income and retained earnings and statements of cash flows for such month and for the portion of the fiscal year ended with the last day of such monthFiscal Year, and stating in each case setting forth in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting previous comparable period, all in reasonable detail and stating in comparative form (i) as reported to the consolidated and consolidating figures as holders of Capital Stock of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal yearCompany, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied reported upon by a report thereon of Deloitte & Touche LLP, LLP or other independent certified public accountants of recognized national standing selected approved by the Parent and reasonably acceptable to the Purchaser Required Lenders (which approval shall not be unreasonably withheld) (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairlyhave been prepared in accordance with GAAP applied consistently with prior periods; and (ii) for any Fiscal Year ending after the Consummation Date, the Annual Report of the Company on Form 10-K for such Fiscal Year signed by a Responsible Officer of the Company;
(b) as soon as available and, in all material respectsany event, within 75 days after the end of each Fiscal Quarter of the Company, (i) for any Fiscal Quarter of the Company ending prior to the Consummation Date, (x) consolidated financial position and consolidating balance sheets of the Company and its Subsidiaries as of the end of such Credit Parties Fiscal Quarter and the related consolidated (and, as to statements of income, consolidating) statements of income, retained earnings and cash flows for the portion of the Company's Fiscal Year ended at the end of such fiscal year Fiscal Quarter, and (y) the consolidated results information described in Section II of operations Schedule 9.1, all in reasonable detail and cash flows for such fiscal year certified by a Responsible Officer of the 58 52 Company as presenting fairly, in conformity accordance with GAAP applied (except as specifically set forth therein and that approved by such Responsible Officer) consistently with such prior periods, the examination information contained therein, subject to changes resulting from normal year-end audit adjustments and setting forth comparable figures for the same accounting period in the preceding Fiscal Year; and (ii) for any Fiscal Quarter of the Company ending after the Consummation Date, the Quarterly Report of the Company on Form 10-Q for the relevant Fiscal Quarter signed by a Responsible Officer of the Company;
(c) prior to the Consummation Date, promptly upon receipt thereof, copies of all reports submitted to the Company, any Guarantor or any other Credit Party by the Accountants in connection with each annual, interim or special audit of the books of the Company, any Guarantor or any such consolidated financial statements has been Credit Party made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of Accountants, including, without limitation, the Parent; and
(ii) a written statement of comment letter submitted by the Accountants (x) setting forth computations to management in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for connection with their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereofannual audit;
(d) concurrently with the delivery of each set of the financial statements furnished pursuant referred to subsections in paragraph (ba) and (c) of this Section 7above, an Officer's Certificate a certificate of the Company Accountants certifying such financial statements, stating that, based upon such that in making the examination or investigation and review necessary therefor no knowledge was obtained of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no any Default or Event of Default exists or (except as specified in such certificate);
(e) concurrently with the delivery of each set of the financial statements referred to in paragraphs (a) and (b) above, a certificate of a Responsible Officer of the Company (i) stating that such Officer has existed during such period or, if such a obtained no knowledge of any Default or Event of Default shall exist (except as specified in such certificate) and (ii) showing in reasonable detail the calculations supporting such statement in respect of subsections 10.1, 10.2, 10.3, 10.4, 10.5, 10.8, 10.10 and 10.11 and (iii) for each fiscal period ending prior to the Consummation Date, describing any litigation or have existedproceeding affecting the Company, the nature Guarantors or any other Credit Party in which the amount involved is $2,000,000 or more and period not covered by insurance or in which injunctive or similar relief is sought involving potential damages of existence $2,000,000 or more;
(f) forthwith upon the occurrence of any Default or Event of Default, a certificate of a Responsible Officer of the Company setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto;
(g) immediately upon any authorized officer of the Company or any Guarantor or of any Commonly Controlled Entity obtaining knowledge of the occurrence of any (i) "reportable event", as such term is defined in Section 4043 of ERISA, or (ii) "prohibited transaction", as such term is defined in Section 4975 of the Code, in connection with any Plan or any trust created thereunder, a written notice specifying the nature thereof, what action the applicable Credit Party Company or such Guarantor has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Partiesand, as of the end of and for the period covered when known, any action taken or threatened by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC with respect thereto, provided that, with respect to the occurrence of any "reportable event" as to which the PBGC has waived 59 53 the 30-day reporting requirement, such written notice need be given only at the time notice is given to the PBGC;
(h) from time to time, such additional information regarding the business, affairs or financial or other position of the Company, any Guarantor and any other Credit Party as any Lender may reasonably request, such information to be provided as soon as practicable after such request;
(iii) received for each Fiscal Year ending prior to the Consummation Date, promptly upon completion but, in any event within 45 days after the end of such Fiscal Year, a copy of the operating budget and projections by any Credit Partythe Company of cash flow of the Company and its Subsidiaries taken as a whole and of the Company and each Subsidiary individually for the next succeeding Fiscal Year of the Company, or any ERISA Affiliate from any plan administrator such operating budget and projections of cash flow to be accompanied by a certificate of a Pension Plan not under their control Responsible Officer to the effect that such operating budget and projections of cash flow have been prepared on the basis of sound financial planning practice and that such Responsible Officer has no reason to believe they are incorrect or from a Multiemployer Plan, or (iii) proposed to be givenmisleading in any material respect;
(j) within five Business Days days after the annual report (Form 5500) same are sent, copies of each Plan all financial statements and reports which the Company and/or its Subsidiaries sends to its public holders of Capital Stock or Pension Plan is filed with debtholders, and within five days after the Internal Revenue Servicesame are filed, a complete copy thereof (including schedules copies of all financial statements and attachments) to reports which the Purchaser;Company may make to, or file with, the SEC or any successor or analogous Governmental Authority; and
(k) promptly after becoming aware of for any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate fiscal month of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating ending prior to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7Consummation Date, as soon as available, but in any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of event within 30 days following the end of then most recently completed such fiscal year month of the Company (orCompany, if a certificate of a Responsible Officer setting forth the information described in Section I of Schedule 9.1 and certifying that such fiscal year shall have ended within the preceding 90 daysinformation is, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request best knowledge of such holderResponsible Officer, a very brief statement of the nature of the business of the Credit Parties true and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated correct in writing by the holder thereofall respects.
Appears in 1 contract
Financial Statements and Information. The Company will Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidated Balance Sheet as of at the end of such fiscal year, together with, in each case, with the related audited consolidated Consolidated Statements of Income and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures Cash Flows as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at through the end of such fiscal year year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheets and Consolidated Statements of Income and Cash Flows shall be audited and certified without qualification by the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and Accountants, which certification shall (i) state that the examination by the such Accountants in connection with such consolidated Consolidated financial statements has been made in accordance with generally accepted auditing standardsstandards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (yii) in include the case opinion of such unaudited consolidating Accountants that such Consolidated financial statementsstatements have been prepared in accordance with GAAP consistently applied.
(b) As soon as available, Certified by but in any event within 45 days after the Chief Financial Officer end of each of the Parent; and
(ii) first three fiscal quarters of each fiscal year, a written statement copy of the Accountants (x) setting forth computations in reasonable detail showing whether or not Consolidated Balance Sheet of the Borrower as at the end of each such quarterly period, together with the related Consolidated Statements of Income and Cash Flows for such period and for the elapsed portion of the fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1through such date, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that setting forth in making each case in comparative form the examination necessary figures for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any corresponding periods of the termspreceding fiscal year, covenants, provisions or conditions of this Agreement or any certified by a Financial Officer of the other Note DocumentsBorrower, or if such Accountants shall have obtained knowledge of any such default, specifying as presenting fairly in all material respects the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Borrower and its Subsidiaries. Credit Parties, as of Agreement ----------------
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Parties, as of first three fiscal quarters (90 days after the end of and for the comparable period in the prior last fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500quarter) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of Compliance Certificate, certified by a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness Financial Officer of the policies of insurance required to be maintained by the provisions of Section 9.4(a);Borrower.
(od) together with each delivery of financial statements pursuant to subsection (b) Such other information as the Administrative Agent or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser Lender may reasonably request from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereoftime.
Appears in 1 contract
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) Borrower will deliver to Lender as soon as available available, and in any event within 30 ninety (90) days after the end of each monthfiscal year of Borrower, copies a copy of the consolidated annual audit report of Borrower, with the opinion of an independent certified public accountant selected by Borrower and consolidating acceptable to Lender, which annual report shall include the balance sheets sheet of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries)Borrower, in each case as of the end of such month fiscal year, and the related consolidated and consolidating statements of income income, retained earnings and cash flows of Borrower for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior yearthen ended, all Certified by in reasonable detail and all prepared in accordance with generally accepted accounting principles, together with a compliance certificate of Borrower in the Chief Financial Officer of the Parent;form attached hereto and marked Exhibit 5.1.
(b) Borrower will deliver to Lender as soon as available available, and in any event within 45 forty-five (45) days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year quarter of the Parent,
(i) copies Borrower, a copy of the consolidated balance sheet and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity retained earnings and cash flows of Borrower, for such accounting period and for the portion of the fiscal year ended with the last day of such accounting quarterly period, all compiled by an independent certified public accountant selected by Borrower and acceptable to Lender, in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such periodyear, all Certified by prepared in accordance with generally accepted accounting principles, together with a compliance certificate of Borrower in the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 form attached hereto and 10.18 hereof;marked Exhibit 5.1.
(c) Borrower will deliver to Lender as soon as available available, and in any event within 90 thirty (30) days after the end of each fiscal year month, a copy of the Parent,
(i) copies of the audited consolidated balance sheet and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity retained earnings and cash flows of PVPL, for such fiscal yearmonth, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated figures for the corresponding date and unaudited consolidating figures as period of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal yearof PVPL, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made prepared in accordance with generally accepted auditing standardsaccounting principles, and (y) together with a compliance certificate of Borrower in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 form attached hereto and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;marked Exhibit 5.1.
(d) concurrently with the financial statements furnished pursuant Borrower will deliver to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement Lender as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, soon as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Partyavailable, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls twenty (including reports as to the absence of any such inadequacies20) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows orthe end of each month, in the case a monthly accounts receivable aging report for Receivables of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence ProConn and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect theretoExact, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or a Borrowing Base Certificate of Borrower in the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;form attached hereto and marked Exhibit 2.1.4.
(je) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) Borrower will deliver to the Purchaser;
(k) Lender promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property existence of any matter that could result in an Event of themDefault or an adverse business development including, or without limitation, (ii1) any material development in dispute that may arise between Borrower and any such actiongovernmental regulatory body or law enforcement authority or other litigation, suitincluding any action relating to any tax liability of Borrower, proceedingif any, governmental investigation or arbitration, which, in either case, which if adversely determined, is likely would materially adversely change the business, properties or condition (financial or otherwise) of Borrower, (2) any labor controversy resulting in or threatening to have result in a Material Adverse Effectstrike or work stoppage against Borrower, an Officer's Certificate (3) any proposal by any public authority to exercise its eminent domain powers to acquire the assets or business of Borrower, (4) the Company maintenance of any Collateral at any place other than at Borrower’s place of business or as permitted under this Agreement, (5) any proposed or actual change of Borrower’s name, identity, state of organization or corporate structure or (6) any other matter which has resulted or may result in a material adverse change in the business, properties or condition (financial or otherwise) of Borrower, a written notice specifying and describing the nature and status of such matter in reasonable detail;or development and the anticipated effect.
(mf) Borrower shall deliver to Lender such other information respecting the financial condition and the results of operations of Borrower and the Collateral as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser Lender may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofrequire.
Appears in 1 contract
Samples: Loan Agreement (Professional Veterinary Products LTD /Ne/)
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Administrative Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies Borrower's annual report on Form 10 K in respect of the audited consolidated and unaudited consolidating such fiscal year, containing its Consolidated balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case sheet as of at the end of such fiscal year, together withwith the related Consolidated statements of operations, stockholders' equity and cash flows as of and through the end of such fiscal year, setting forth in each casecase in comparative form the figures for the preceding fiscal year, such Consolidated financial statements to be audited and certified without Impermissible Qualification by the Accountants.
(b) As soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a copy of the Borrower's quarterly report on Form 10 Q in respect of such fiscal quarter, containing the Consolidated balance sheet of the Borrower as at the end of each such quarterly period, together with the related audited consolidated and unaudited consolidating Consolidated statements of incomeoperations, shareholdersstockholders' equity and cash flows for such period and for the elapsed portion of the fiscal year, and the notes thereto, all year through such date (setting forth in reasonable detail and stating each case in comparative form (i) the respective audited consolidated and unaudited consolidating figures as for the corresponding periods of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such preceding fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), all of which report shall be unqualified as to going concern complete and scope of audit and shall state that such consolidated financial statements present fairly, correct in all material respects, respects and shall present fairly the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit Parties, as Borrower in accordance with GAAP (subject to normal year end adjustments and the absence of footnotes).
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Partiesfirst three fiscal quarters, as of and within 90 days after the end of the last fiscal quarter, of each fiscal year a Compliance Certificate certified by a Financial Officer.
(d) Prompt written notice if there shall occur and for be continuing any Event of Default.
(e) Prompt written notice of any citation, summons, subpoena, order to show cause or other document naming the comparable period in Borrower or any of its Subsidiaries a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the prior fiscal year)validity or enforceability of any of the Loan Documents, and describing any significant events relating include with such notice a copy of such citation, summons, subpoena, order to the Credit Parties occurring during such period;show cause or other document.
(f) promptly after the same are available and in any event within 10 days thereofPromptly upon becoming available, copies of all such proxy registration statements, financial statementsAnnual Reports to shareholders, notices 10-Ks, 10-Qs, 8-Ks, proxy materials and reports as other material documents which the Borrower or any Credit Party shall send of its Subsidiaries may now or make available generally hereafter be required to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 deliver to shareholders or a similar form) which any Credit Party may file with the SEC or with deliver to any securities exchange;exchange or the SEC.
(g) promptly after Prompt written notice in the receipt thereof by event that the Borrower, any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party Subsidiaries or any ERISA Affiliate knows orknows, in the case of a Pension Plan or has reason to know, that any event or condition described in Section 4.19 hereof has shall have occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Partywill occur, or any ERISA Affiliate condition exists, with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of respect to a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to the result of which could reasonably be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely expected to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;.
(mh) Prompt written notice upon the Borrower becoming aware of any change, withdrawal or reinstatement of any rating of Applicable Debt by S&P or Xxxxx'x.
(i) Such other information as soon as available (and in the Administrative Agent or any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect Lender shall reasonably request from time to time;
(n) at least once in each fiscal year, a . Each report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance and document required to be maintained delivered by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements Borrower pursuant to subsection subparagraphs (a), (b) or and (cf) of this Section 7, 7.1 shall be deemed to have been delivered on the date on which the Borrower notifies the Administrative Agent and the Lenders that such report or such document has been posted at a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of site (the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or address of which any of them has knowledge. It shall be contained in such notice) on the world wide web, which site is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated accessible by a holder thereof shall have the right to obtain widely held nationally recognized web browser, from the Parent, upon the written request of which such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall report or document may be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofreadily printed.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):Banks:
(a) as soon as available available, and in any event within 30 120 days after the end of each monthfiscal year of Panhandle Eastern, copies a copy of the consolidated and consolidating balance sheets annual audit report of each of (i) the Parent Panhandle Eastern and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries)for such fiscal year containing a balance sheet, in each case as of the end of such month and the related consolidated and consolidating statements statement of income for such month and for the portion of the fiscal year ended with the last day of such month, stockholders equity and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior yeara cash flow statement, all Certified in reasonable detail and certified by PriceWaterhouseCoopers or another independent certified public accountant of recognized standing reasonably satisfactory to the Chief Financial Officer of the Parent;Banks; and
(b) as soon as available available, and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies Borrower and CCC, an unaudited financial report of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Borrower and its Subsidiaries and (ii) the Parent an unaudited report of CCC and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of for such fiscal yearyear containing a balance sheet, together with, in each case, the related audited consolidated statement of income and unaudited consolidating statements of income, shareholders' stockholders equity and cash flows for such fiscal year, and the notes theretoflow statement, all in reasonable detail and stating certified by a financial officer of such Loan Party to have been prepared in comparative form accordance with GAAP, except as may be explained in such certificate; and
(ic) the respective audited consolidated as soon as available, and unaudited consolidating figures as of in any event within 60 days after the end of and for the previous each quarterly accounting period in each fiscal year or part thereof of Panhandle Eastern, CCC and the Borrower (ii) excluding the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"fourth quarter), which an unaudited financial report shall be unqualified as to going concern of Panhandle Eastern and scope of audit its Subsidiaries, CCC and shall state that such consolidated financial statements present fairly, in all material respects, its Subsidiaries and the consolidated financial position of such Credit Parties Borrower and its Subsidiaries as at the end of such fiscal year quarter and for the consolidated results period then ended, containing a balance sheet, statements of operations income and stockholders equity and a cash flows for flow statement, all in reasonable detail and certified by a financial officer of such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has Loan Party to have been made prepared in accordance with generally accepted auditing standardsGAAP, and (y) except as may be explained in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereofcertificate;
(d) concurrently such additional financial or other information as the Banks may reasonably request; and
(e) copies of all regular, periodic and special reports, and all registration statements, that such Loan Party files with the SEC or any governmental authority that may be substituted therefor, or with any national securities exchange. All financial statements furnished pursuant to subsections specified in clauses (a), (b) and (c) above shall be furnished in Consolidated form for Panhandle Eastern and its Subsidiaries, CCC and its Subsidiaries and the Borrower and its Subsidiaries with comparative Consolidated figures for the corresponding period in the preceding year. Together with each delivery of this Section 7financial statements required by clauses (a), (b) and (c) above, each of Panhandle Eastern, CCC and the Borrower, as applicable, will deliver to the Banks an Officer's ’s Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, that there exists no Default or Event of Default exists or has existed during such period Default, or, if any such a Default or Event of Default shall exist or have existedDefault exists, stating the nature thereof, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party Borrower has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together . Together with each delivery of financial statements pursuant to subsection required by clauses (ba) or and (c) of this Section 7above, a report as Panhandle Eastern will deliver to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to the Banks an Officer’s Certificate demonstrating compliance with the covenants set forth in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
6.1 (p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may beFinancial Covenants). The Company and the Parent will keep at its principal executive office Banks are authorized to deliver a true copy of this Agreementany financial statement delivered to it to any regulatory body having jurisdiction over them, and cause the to disclose same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes assignees or Warrants designated in writing by the holder thereofparticipant Banks.
Appears in 1 contract
Samples: Credit Agreement (Southern Union Co)
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as soon as available The Borrower shall provide the Lender with an aging and in any event within 30 listing of accounts receivable (including both Commercial Accounts and Government Accounts) and an aging and listing of accounts payable by 10:00 a.m. on the day which is five (5) business days after the end fifteenth (15th) and the thirtieth (30th) day of each month, copies respectively, covering the periods from (A) the first (lst) day of the consolidated month through the fifteenth (15th) day of the month and consolidating balance sheets of each of (iB) the Parent and its Subsidiaries and sixteenth (ii16th) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as day of the end of such month and through the related consolidated and consolidating statements of income for such month and for the portion thirtieth (30th) day of the fiscal year ended with month (or the last day of such monththe month in the event that the month does not have thirty (30) days (i.e., February and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior yearmonths having thirty-one (31) days), all Certified by the Chief Financial Officer of the Parent;respectively. Such list shall identify which accounts receivable have been pledged to which creditor.
(b) The Borrower shall provide the Lender on a monthly basis consolidating financial statements in such form and detail as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;Lender may require.
(c) as soon as available and in any event within 90 Within ninety (90) days after from the end of each fiscal year of year, the Parent,
(i) copies of Borrower shall provide to the audited consolidated Lender the complete 10-K and unaudited consolidating balance sheets and income and expense statements of each of the Borrower together with its subsidiaries audited by an independent certified public accountant firm selected by the Borrower and acceptable to the Lender. Within forty-five (i45) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of days from the end of such each fiscal year, together with, in each casequarter, the related audited consolidated Borrower shall provide to the Lender the complete 10-Q and unaudited consolidating balance sheets and income and expense statements of incomethe Borrower together with its subsidiaries, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made prepared in accordance with generally accepted auditing standardsGAAP. Notwithstanding the foregoing, and (y) in the case event that the Borrower shall file for and receive an extension of such unaudited consolidating financial statementstime to file its 10-K or l0-Q, Certified the time periods referenced in this paragraph shall be extended by the Chief Financial Officer of the Parent; and
thirty (ii30) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not days, as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;applicable.
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default The Borrower shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating provide to the Credit Parties occurring during Lender such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, other financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and Lender may request in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in its reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect discretion from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to Bank the Purchaser until all of the Obligations have been indefeasibly paid in full following financial statements and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):information:
(ai) as soon as available and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of ninety (i90) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies , consolidated and consolidating statements of income, retained earnings and cash flow of the audited Borrowers and their Consolidated Subsidiaries for such fiscal year and the related consolidated and unaudited consolidating balance sheets of each of (i) the Parent Borrowers and its their Consolidated Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of at the end of such fiscal year, together with, setting forth in each case, case in comparative form the related audited corresponding consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows figures for such the preceding fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form accompanied (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each those consolidated statements and balance sheet of such audited consolidated financial statementsthe Borrowers, accompanied by a report thereon an opinion of Deloitte & Touche LLP, or other independent certified public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants")standing, which report shall be unqualified as to going concern and scope of audit and opinion shall state that such those consolidated financial statements fairly present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (y) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit PartiesBorrowers and their Consolidated Subsidiaries as at the end of, as and for, such fiscal year in accordance with generally accepted accounting principles, consistently applied, (ii) in the case of those consolidating statements and balance sheets, by a certificate of a senior financial officer of the end of and for the period covered by such Parent, which certificate shall state that those consolidating financial statements (including a comparison thereof with fairly present the respective individual unconsolidated financial condition and results of operations of the Credit PartiesBorrowers and each of their Consolidated Subsidiaries, and (iii) management letter of the certified public accountants to the Borrowers, in each case in accordance with generally accepted accounting principles, consistently applied, as of at the end of of, and for the comparable period in the prior for, such fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(fii) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Partysoon as available, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls forty-five (including reports as to the absence of any such inadequacies45) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning close of each quarterly fiscal period of each fiscal year of Parent, quarterly and fiscal year to date by division (as that term is set forth in the Company)Business Plan of Borrowers referenced in Section 6.17, a copy of a above) consolidated and consolidating budget statement of income, retained earnings, balance sheets and cash flow by division (as that term is set forth in the Business Plan of Borrowers referenced in Section 6.17, above) of the Credit PartiesBorrowers and their Consolidated Subsidiaries, in each case prepared accompanied by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness a senior financial officer of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) which certificate shall state that those quarterly consolidated financial statements fairly present the consolidated balance sheet financial condition and result of operations of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity Borrowers and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.their Consolidated
Appears in 1 contract
Financial Statements and Information. The Company will Maintain, and cause each of its Restricted Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Purchaser until all of the Obligations have been indefeasibly paid in full Agent and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):each Lender:
(a) as As soon as available and in any event within 30 days after the end of each monthavailable, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and but in any event within 90 days after the end of each fiscal year year, a copy of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case Consolidated Balance Sheet as of at the end of such fiscal year, together with, in each case, with the related audited consolidated Consolidated Statements of Income, Changes in Partnership Deficiency and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures Cash Flows as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at through the end of such fiscal year year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheets and Consolidated Statements of Income, Changes in Partnership Deficiency and Cash Flows shall be audited and certified without qualification by the consolidated results of operations and cash flows for such fiscal year in conformity with GAAP and Accountants, which certification shall (i) state that the examination by the such Accountants in connection with such consolidated Consolidated financial statements has been made in accordance with generally accepted auditing standardsstandards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (yii) in include the case opinion of such unaudited consolidating Accountants that such Consolidated financial statementsstatements have been prepared in accordance with GAAP in a manner consistent with prior fiscal periods, Certified by except as otherwise specified in such opinion.
(b) As soon as available, but in any event within 45 days after the Chief Financial Officer end of each of the Parent; and
(ii) first three fiscal quarters of each fiscal year, a written statement copy of the Accountants (x) setting forth computations in reasonable detail showing whether or not Consolidated Balance Sheet of the Borrower as at the end of each such quarterly period, together with the related Consolidated Statements of Income and Cash Flows for such period and for the elapsed portion of the fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1through such date, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that setting forth in making each case in comparative form the examination necessary figures for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any corresponding periods of the termspreceding fiscal year, covenants, provisions or conditions of this Agreement or any certified by a Financial Officer of the other Note DocumentsBorrower, or if such Accountants shall have obtained knowledge of any such default, specifying as presenting fairly in all material respects the nature and status thereof;
(d) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the Consolidated financial condition and the Consolidated results of operations of the Credit Parties, as of Borrower and its Restricted Subsidiaries.
(c) Within 45 days after the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations each of the Credit Parties, as of first three fiscal quarters (90 days after the end of and for the comparable period in the prior last fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Companyquarter), a copy of Compliance Certificate, certified by a consolidated and consolidating budget Financial Officer of the Credit Parties, in each case prepared by Borrower.
(d) Such other information as the Company for such fiscal year, and all amendments thereto which Agent or any Lender may be in effect reasonably request from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereof.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):------------------------------------ Banks:
(a) as soon as available available, and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies Borrower, a copy of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as annual audit report of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, Borrower and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows Subsidiaries for such fiscal year containing a balance sheet, statements of income and stockholders equity and a cash flow statement, all in conformity with GAAP reason- able detail and that certified by Price Waterhouse Coopers or another independent certified public accountant of recognized standing satisfactory to the examination by Banks. The Borrower will obtain from such accountants and deliver to the Accountants in connection with such consolidated Banks at the time said financial statements has been made in accordance with generally accepted auditing standards, and (y) in are delivered the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating accountants that in making the examination necessary for their report on such financial statements to said certification they have obtained no knowledge of any default by any Credit Party in the fulfillment Event of any of the terms, covenants, provisions Default or conditions of this Agreement or any of the other Note DocumentsDefault, or if such Accountants accountants shall have obtained knowledge of any such defaultEvent of Default or Default, specifying they shall state the nature and status thereof;period of existence thereof in such statement; provided that ------------- such accountants shall not be liable directly or indirectly to the Banks for failure to obtain knowledge of any such Event of Default or Default; and
(b) as soon as available, and in any event within sixty (60) days after the end of each quarterly accounting period in each fiscal year of the Borrower (excluding the fourth quarter), an unaudited financial report of the Borrower and the Subsidiaries as at the end of such quarter and for the period then ended, containing a balance sheet, statements of income and stockholders equity and a cash flow statement, all in reasonable detail and certified by a financial officer of the Borrower to have been prepared in accordance with GAAP, except as may be explained in such certificate; and
(c) within thirty (30) days after the end of each month for which the rating of the Borrower's Senior Funded Debt is lower than BBB- by Standard and Poor's Corporation and lower than Baa3 by Xxxxx'x Investor Service, Inc.: (i) a list of the Eligible Accounts Receivable, Cash, Cash Equivalents and Inven- tory of the Borrower as at the end of the preceding month, such list to be in the form attached hereto as Annex 1 to Exhibit C ------- --------- and to contain such information and detail as the Banks may request, including, without limiting the generality of the foregoing, aging of Accounts in the customary manner; (ii) certification by the Borrower of its PGA Receivables and Eligible Unbilled Accounts as of the end of the preceding month; and (iii) a Borrowing Base certificate for such month in the form attached hereto as Exhibit C; provided, however, that the Borrower may --------- -------- ------- deliver the Borrowing Base reports for the last month of any fiscal year and the Borrowing Base reports for the first two months of the succeeding fiscal year no later than 90 days following the commencement of such succeeding fiscal year.
(d) concurrently copies of all statements and reports sent to stockholders of the Borrower or filed with the Securities and Exchange Commission; and
(e) such additional financial or other information as the Banks may reasonably request including, without limitation, copies of such monthly, quarterly, and annual reports of gas purchases and sales that the Borrower is required to deliver to or file with governmental bodies pursuant to tariffs and/or franchise agreements. All financial statements furnished pursuant to subsections specified in clauses (a) and (b) above shall be furnished in consolidated and consolidating form for the Borrower and all Subsidiaries with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (cb) of this above, the Borrower will deliver to the Banks (i) such schedules, computations and other information as may be required to demonstrate that the Borrower is in compliance with its covenants in Section 7, 9.1 or reflecting any noncompliance therewith as at the applicable date and (ii) an Officer's Certificate of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, that there exists no Default or Event of Default exists or has existed during such period Default, or, if any such a Default or Event of Default shall exist or have existedDefault exists, stating the nature thereof, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party Borrower has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely . The Banks are authorized to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), deliver a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal yearany financial statement delivered to it to any regulatory body having jurisdiction over them, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as disclose same to any new trademark, patent and copyright registrations prospective assignees or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofparticipant Lenders.
Appears in 1 contract
Financial Statements and Information. The Company will Borrowers shall furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):Lenders:
(ai) as soon as available within five Business Days after approval by the Board of Directors of SSWG and in any event within 30 120 days after the end of each monthfiscal year of SSWG, copies of the consolidated and consolidating balance sheets comparative financial statements of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case SSWG as of the end of such month fiscal year, prepared in accordance with GAAP, accompanied by a report thereon of independent chartered accountants or certified public accountants of recognized national standing in Canada or the United States to the effect that the consolidated statements present fairly, in all material respects, the consolidated financial position of SSWG as of the end of such fiscal year and the related consolidated results of the operations and consolidating statements of income changes in financial position for such month and for the portion of the fiscal year ended in conformity with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the ParentGAAP;
(bii) if differences between GAAP as at the date of the financial statements referred to in subparagraph (i) and GAAP as at December 31, 1997 result in the calculation of any amount or financial ratio under this Agreement being different than if calculated using GAAP as at the date of such financial statements, a reconciliation of the differing calculations of such amounts and a report on such reconciliation by the independent accountants reporting on the financial statements;
(iii) within five Business Days after approval by the Board of Directors of each Group Entity other than SSWG and in any event within 120 days after the end of each fiscal year of such Group Entity, copies of the unaudited unconsolidated financial statements of such Group Entity as of the end of such fiscal year;
(iv) as soon as available and in any event within 45 days after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) fiscal periods in each fiscal year of the Parent,
(i) SSWG, copies of the comparative consolidated and consolidating balance sheets financial statements of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case SSWG as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all prepared in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal yearaccordance with GAAP, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon senior financial officer of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable SSWG to the Purchaser (effect that the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties SSWG as at of the end of such fiscal year period and the related consolidated results of operations and cash flows changes in financial position for such fiscal year in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made period in accordance with generally accepted auditing standardsGAAP consistently applied;
(v) if differences between GAAP as at the date of the financial statements referred to in subparagraph (iv) and GAAP as at December 31, and (y) 1997 result in the case calculation of any amount or financial ratio under this Agreement being different than if calculated using GAAP as at the date of such unaudited consolidating financial statements, Certified by the Chief Financial Officer a reconciliation of the Parent; anddiffering calculations of such amounts and a report on such reconciliation by a senior financial officer of SSWG;
(iivi) a written statement as soon as available and in any event within 45 days after the end of each of the Accountants (x) setting forth computations first three quarterly fiscal periods in reasonable detail showing whether or not each fiscal year of each Group Entity other than SSWG, copies of the unaudited unconsolidated financial statements of such Group Entity as at of the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereofperiod;
(dvii) concurrently with the financial statements furnished pursuant to subsections subparagraphs (bi), (iii), (iv) and (cvi) above, a Quarterly Financial Certificate duly executed by the chief financial officer or vice- president, finance of this Section 7, an Officer's Certificate of the Company SSWG:
(1) stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed occurred during such period or as at the date of such certificate or, if such a any Default or Event of Default shall exist or have existedoccurred, specifying all such Defaults and Events of Default, the nature and period of existence thereof and what action the applicable Credit Party has Borrowers have taken, is are taking or proposes propose to take with respect thereto;; and
(e2) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, setting forth computations in reasonable detail showing as of the end of and for the period covered by such financial statements (including a comparison thereof whether the Borrowers were in compliance with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal yearSections 8.01(l), (m), (n) and describing (o) and reporting any significant events relating to the Credit Parties occurring during such periodtransaction under Section 9.01(f);
(fviii) not less than 45 days prior to the commencement of each fiscal year of SSWG, a preliminary Business Plan and Capital Expenditure Plan for the ensuing fiscal year;
(ix) not less than 30 days after the commencement of each fiscal year of SSWG, the final Business Plan and Capital Expenditure Plan for such fiscal year;
(x) promptly after the same are available Borrowers become aware thereof, written notice of any material change to any Business Plan or Capital Expenditure Plan previously provided to the Lenders, and as soon as reasonably practicable an updated Business Plan or Capital Expenditure Plan, as the case may be;
(xi) promptly and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or four Business Days after a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies Responsible Officer of any management letters and any reports as to material inadequacies in accounting controls (including reports as to of the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming Borrowers becomes aware of (1) the existence of any a Default or Event of Default on the part Default, a certificate duly executed by an Authorized Officer of any Credit Party, an Officer's Certificate of the Company such Borrower specifying the nature and period of existence thereof and what action the applicable Credit Party is Borrowers have taken, are taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes propose to take with respect thereto;
(ixii) promptly and in with reasonable promptness:
(A) written notice specifying any event within 10 days after any Credit Party or any ERISA Affiliate knows or, change in the case maximum amount available to or in the outstanding amount borrowed by any Group Entity under any other agreement or arrangement relating to borrowed money (excluding regularly scheduled payments of a Pension Plan has reason to know, that any event or condition described principal and interest in Section 4.19 hereof has occurred or existsrespect of Indebtedness), or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled demand for payment or other action taken by the holder of any Credit Party, or other Indebtedness of any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed Group Entity to be givenrecover such Indebtedness;
(jB) within five Business Days after written notice of any actual or probable material litigation or other legal proceedings affecting any of the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof Group Entities (including schedules and attachmentsany proceeding before an arbitrator, quasi-judicial tribunal or other Governmental Body) to involving a potential liability of more than U.S.$1,000,000 (or the Purchaserequivalent thereof in any other currency), including copies of relevant legal documentation;
(kC) promptly after becoming aware written notice of any Material Adverse Effect with taxes or other amounts the validity of which is disputed by any Group Entity pursuant to Section 8.01(d) or any other claim or matter in respect to of which notice is not otherwise a Group Entity would be required to be given pursuant to this Section 7, reserve an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take amount in accordance with respect theretoGAAP;
(lD) promptly (and in written notice of any event within 10 days) after the Parent occurrence, including without limitation any third party claim or the Company knows liability, of (i) the institution of, or threat of, which any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party Borrower becomes aware which may prevent such Borrower or any Property of the other Group Entities from performing any of them, its obligations under this Agreement or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the other Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit PartyFacility Documents; and
(sE) any such other information, including financial statements and computations, relating to the performance of obligations arising under the provisions of this Agreement and/or and the affairs of the Credit Parties that Group Entities as the Purchaser Lenders may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofrequest.
Appears in 1 contract
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):
(a) as soon as available Tenant shall deliver to Landlord and in to any event within 30 days after lender or purchaser designated by Landlord the end following information certified to be true, complete and correct by an officer of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event Tenant within 90 days after the end of each fiscal year of the Parent,
(i) copies Tenant: a balance sheet of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Tenant and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case consolidated subsidiaries as of the end of such fiscal year, together witha statement of profits and losses of Tenant and its consolidated subsidiaries for such year, and an audited statement of cash flows of Tenant and its consolidated subsidiaries for such year, setting forth in each case, in comparative form, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows corresponding figures for such the preceding fiscal year, and the notes thereto, all year in reasonable detail and stating in comparative form (i) the respective audited consolidated scope and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied certified by a report thereon of Deloitte & Touche LLP, or other independent certified public accountants of recognized national standing selected by Tenant; and within 45 days after the Parent end of each fiscal quarter of Tenant a balance sheet of Tenant and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such its consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties subsidiaries as at the end of such fiscal year quarter, statements of profits and the losses of Tenant and its consolidated results subsidiaries for such quarter and a statement of operations and cash flows of Tenant and its consolidated subsidiaries for such fiscal year quarter, setting forth in conformity with GAAP each case, in comparative form, the corresponding figures for the similar quarter of the preceding year, in reasonable detail and that scope, and certified to be true and complete by a financial officer of Tenant having knowledge thereof, the examination by the Accountants in connection with such consolidated foregoing financial statements has been made all being prepared in accordance with generally accepted auditing standardsaccounting principles, consistently applied. If Tenant or any guarantor of Tenant is a reporting company under the Securities and (y) in Exchange Act of 1934, as amended, the case foregoing requirements of such unaudited consolidating financial statements, Certified this Section 35 will be satisfied by the Chief Financial Officer delivery of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether Tenant's or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1guarantor's Form 10-K, 10.7, 10.10, 10.11 10-Q and 10.18 hereof, and (y) stating that in making the examination necessary for annual reports promptly upon their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants shall have obtained knowledge of any such default, specifying the nature and status thereof;
(d) concurrently filing with the financial statements furnished pursuant to subsections Securities and Exchange Commission.
(b) Upon ten (10) days' prior written notice Tenant will permit Landlord and (c) of this Section 7its professional representatives to visit Tenant's offices, an Officerand discuss Tenant's Certificate of affairs and finances with appropriate officers, and will make available such information as Landlord may reasonably request bearing on the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or, if such a Default or Event of Default shall exist or have existedTenant, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking demised premises or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year)Lease, and describing any significant events relating to Landlord shall maintain the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies confidentiality of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal year, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right Tenant as "nonpublic," and Landlord will execute and use its reasonable efforts to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred cause Landlord's professional representatives to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofexecute confidentiality agreements."
Appears in 1 contract
Samples: Lease (Haemonetics Corp)
Financial Statements and Information. The Company will furnish to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g)you, so long as they you shall be obligated to purchase or shall hold any Warrants or of the Debentures, and to each other institutional holder of any shares of Warrant Stock):the Debentures, in duplicate:
(a) A. as soon as available and in any event within 30 60 days after the end of each monththe first, copies of the consolidated second and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each third quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Parent,
(i) Company, copies of a consolidated balance sheet and statement of capitalization of the consolidated and consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, period and of the related consolidated and consolidating statements of income, shareholders' equity retained earnings and cash flows sources of funds used for construction of the Company and its Subsidiaries for such accounting period and for the portion of the fiscal year ended with the last day of such quarterly accounting period, all in reasonable detail detail, prepared in accordance with GAAP (consistently applied except as set forth in the notes thereto) and stating in comparative form (i) the respective consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified certified by the Chief Financial Officer principal financial officer of the ParentCompany to present fairly the information contained therein, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the subject to year-end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereofaudit adjustments;
(c) B. as soon as available and in any event within 90 days after the end of each fiscal year of the ParentCompany,
(ia) copies of a consolidated balance sheet and statement of capitalization of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent Company and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such fiscal year, together with, in each case, year and of the related audited consolidated and unaudited consolidating statements of income, shareholders' equity retained earnings and cash flows sources of funds used for construction of the Company and its Subsidiaries for such fiscal year, and the notes thereto, all in reasonable detail prepared in accordance with GAAP (consistently applied except as set forth in the notes thereto) and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, all accompanied by a report thereon of Deloitte Arthur Andersen & Touche LLPCo., or other independent public accountants of recognized accountxxxx xf xxxxxxxzed national standing selected by the Parent Company, and reasonably acceptable to (b) a consolidating balance sheet of the Purchaser (the "Accountants"), which report shall be unqualified Company and its Subsidiaries as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and of the consolidated results related consolidating statement of operations income of the Company and cash flows its Subsidiaries for such fiscal year year, all in conformity with GAAP and that the examination by the Accountants in connection with such consolidated financial statements has been made reasonable detail, prepared in accordance with generally accepted auditing standards, and GAAP (y) consistently applied except as set forth in the case of such unaudited consolidating financial statements, Certified notes thereto) and all certified by the Chief Financial Officer principal financial officer of the Parent; Company to be correct and complete and to present fairly the information contained therein, and
(ii2) a written statement of the Accountants accountants referred to in clause (x1) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) above stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by any Credit Party in the fulfillment Default or Event of any of the termsDefault or, covenants, provisions or conditions of this Agreement or any of the other Note Documents, or if such Accountants accountants shall have obtained knowledge of any such defaultDefault or Event of Default, specifying the nature and status thereof;,
(d) C. concurrently with the financial statements for each quarterly accounting period and for each fiscal year of the Company, furnished pursuant to subsections (b) Subsections A and (c) B of this Section 7Section, a certificate of the President or an Officer's Certificate Executive Vice President of the Company containing computations demonstrating compliance during such accounting period or fiscal year, as the case may be, with 8.4 and 8.6, and stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or to the knowledge of the Company has existed during such period or, if such a Default or Event of Default shall exist or have existed, specifying the nature and period of existence thereof and what action the applicable Credit Party Company has taken, is taking or proposes to take with respect thereto;
(e) concurrently D. promptly after the receipt thereof by the Company, copies of any reports as to material inadequacies in accounting controls submitted to the Company by independent accountants in connection with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis any audit of the financial condition and results Company or of operations any Subsidiary made by such accountants;
E. promptly after receipt thereof by the Company, copies of each audit report submitted to the Company or any Subsidiary by independent accountants in connection with any annual, interim or special audit made by them of the Credit Parties, as books of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing Company or any significant events relating to the Credit Parties occurring during such periodSubsidiary;
(f) F. promptly after the same are available and in any event within 10 days thereofavailable, copies of (1) all such proxy statements, financial statements, notices statements and reports as any Credit Party the Company shall send or make available generally to their any of its security holdersholders or as any Subsidiary shall send or make available generally to any of its security holders (other than the Company or another Subsidiary), and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which the Company or any Credit Party Subsidiary may file with the SEC or with any securities exchange, and (2) all annual financial reports filed by the Company or any Subsidiary with the North Carolina Utilities Commission or with the Federal Energy Regulatory Commission;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) G. immediately after becoming aware of (1) the existence of any a Default or Event of Default on Default, a certificate of the part Chairman of any Credit Partythe Board, an Officer's Certificate the President, Executive Vice President or a principal financial officer of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking Company or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturitya Subsidiary, or any holder of such Indebtedness having as the right to declare such Indebtedness due and payable before its expressed maturitycase may be, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in H. immediately upon becoming aware that the holder of any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case evidence of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate indebtedness of the Company setting forth information as to such occurrence and what action, if any, (including Bonds of any series outstanding under the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (iIndenture) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of Trustee under the Indenture has given notice or taken any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect other action with respect to which a claimed default, a written notice is not otherwise required to be specifying the notice given pursuant to this Section 7, an Officer's Certificate or action taken by such holder or the Trustee and the nature of the Company setting forth the details of such Material Adverse Effect claimed default and stating what action the applicable Credit Party has taken Company is taking or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property I. immediately upon becoming aware of any condition or event which constitutes or, after notice or lapse of themtime or both, or (ii) any material development would constitute a default specified in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate Section 11.01 of Article Eleven of the Company describing Indenture, a written notice specifying the nature and status period of such matter in reasonable detail;
(m) as soon as available (existence thereof, and in any event not later than 30 days after the beginning of each fiscal year of the Company), a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by what action the Company for such fiscal yearhas taken, and all amendments thereto which may be in effect from time is taking or proposes to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker take with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as to any new trademark, patent and copyright registrations or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Partythereto; and
(s) any J. with reasonable promptness, such other information, including financial statements and computations, information relating to the performance of obligations arising under the provisions of this Agreement and/or and the Debentures and the business, affairs and financial condition of the Credit Parties that the Purchaser Company and its Subsidiaries as you or any such holder may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be)request. The Company and the Parent will keep at its principal executive office a true copy of this AgreementAgreement (as at the time in effect), and cause the same to be available for inspection at said office during normal business hours by any holder of Notes a Debenture or Warrants or by any prospective purchaser of Notes or Warrants a Debenture designated in writing by the holder thereof.
Appears in 1 contract
Samples: Debenture Purchase Agreement (Public Service Co of North Carolina Inc)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurred (and, with respect to the documents and information referred to in subsections (a), (b)(i), (c)(i), (e), (f) and (g), so long as they shall hold any Warrants or any shares of Warrant Stock):------------------------------------ Banks:
(a) as soon as available available, and in any event within 30 days after the end of each month, copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such month and the related consolidated and consolidating statements of income for such month and for the portion of the fiscal year ended with the last day of such month, and stating in comparative form the corresponding figures from the consolidated budget for such period and the prior year, all Certified by the Chief Financial Officer of the Parent;
(b) as soon as available and in any event within 45 days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of the Parent,
(i) copies of the consolidated and consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating statements of income, shareholders' equity and cash flows for such accounting period and for the portion of the fiscal year ended with the last day of such accounting period, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget for such period, all Certified by the Chief Financial Officer of the Parent, and
(ii) a written statement of the Chief Financial Officer of the Parent setting forth computations in reasonable detail showing whether or not as at the end of such fiscal quarter there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof;
(c) as soon as available and in any event within 90 120 days after the end of each fiscal year of the Parent,
(i) copies Borrower, a copy of the audited consolidated and unaudited consolidating balance sheets of each of (i) the Parent and its Subsidiaries and (ii) the Parent and its Subsidiaries (other than the Restaurant Subsidiaries), in each case as annual audit report of the end of such fiscal year, together with, in each case, the related audited consolidated and unaudited consolidating statements of income, shareholders' equity and cash flows for such fiscal year, Borrower and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of Deloitte & Touche LLP, or other independent public accountants of recognized national standing selected by the Parent and reasonably acceptable to the Purchaser (the "Accountants"), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of such Credit Parties as at the end of such fiscal year and the consolidated results of operations and cash flows Subsidiaries for such fiscal year containing a balance sheet, statements of income and stockholders equity and a cash flow statement, all in conformity with GAAP reason- able detail and that certified by Price Waterhouse Coopers or another independent certified public accountant of recognized standing satisfactory to the examination by Banks. The Borrower will obtain from such accountants and deliver to the Accountants in connection with such consolidated Banks at the time said financial statements has been made in accordance with generally accepted auditing standards, and (y) in are delivered the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Parent; and
(ii) a written statement of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of any of Sections 10.1, 10.7, 10.10, 10.11 and 10.18 hereof, and (y) stating accountants that in making the examination necessary for their report on such financial statements to said certification they have obtained no knowledge of any default by any Credit Party in the fulfillment Event of any of the terms, covenants, provisions Default or conditions of this Agreement or any of the other Note DocumentsDefault, or if such Accountants accountants shall have obtained knowledge of any such defaultEvent of Default or Default, specifying they shall state the nature and status thereof;period of existence thereof in such statement; provided that ------------- such accountants shall not be liable directly or indirectly to the Banks for failure to obtain knowledge of any such Event of Default or Default; and
(b) as soon as available, and in any event within sixty (60) days after the end of each quarterly accounting period in each fiscal year of the Borrower (excluding the fourth quarter), an unaudited financial report of the Borrower and the Subsidiaries as at the end of such quarter and for the period then ended, containing a balance sheet, statements of income and stockholders equity and a cash flow statement, all in reasonable detail and certified by a financial officer of the Borrower to have been prepared in accordance with GAAP, except as may be explained in such certificate; and
(c) within thirty (30) days after the end of each month for which the rating of the Borrower's Senior Funded Debt is lower than BBB- by Standard and Poor's Corporation and lower than Baa3 by Xxxxx'x Investor Service, Inc.: (i) a list of the Eligible Accounts Receivable, Cash, Cash Equivalents and Inven- tory of the Borrower as at the end of the preceding month, such list to be in the form attached hereto as Annex 1 to Exhibit C ------- --------- and to contain such information and detail as the Banks may request, including, without limiting the generality of the foregoing, aging of Accounts in the customary manner; (ii) cer- tification by the Borrower of its PGA Receivables and Eligible Unbilled Accounts as of the end of the preceding month; and (iii) a Borrowing Base certificate for such month in the form attached hereto as Exhibit C; provided, however, that the Borrower may --------- -------- ------- deliver the Borrowing Base reports for the last month of any fiscal year and the Borrowing Base reports for the first two months of the succeeding fiscal year no later than 90 days following the commencement of such succeeding fiscal year.
(d) concurrently copies of all statements and reports sent to stockholders of the Borrower or filed with the Securities and Exchange Commission; and
(e) such additional financial or other information as the Banks may reasonably request including, without limitation, copies of such monthly, quarterly, and annual reports of gas purchases and sales that the Borrower is required to deliver to or file with governmental bodies pursuant to tariffs and/or franchise agreements. All financial statements furnished pursuant to subsections specified in clauses (a) and (b) above shall be furnished in consolidated and consolidating form for the Borrower and all Subsidiaries with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (cb) of this above, the Borrower will deliver to the Banks (i) such schedules, computations and other information as may be required to demonstrate that the Borrower is in compliance with its covenants in Section 7, 10.1 or reflecting any noncompliance therewith as at the applicable date and (ii) an Officer's Certificate of the Company Cer- tificate stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, that there exists no Default or Event of Default exists or has existed during such period Default, or, if any such a Default or Event of Default shall exist or have existedDefault exists, stating the nature thereof, the nature and period of existence thereof and what action the applicable Credit Party has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Credit Parties, as of the end of and for the period covered by such financial statements (including a comparison thereof with the financial condition and results of operations of the Credit Parties, as of the end of and for the comparable period in the prior fiscal year), and describing any significant events relating to the Credit Parties occurring during such period;
(f) promptly after the same are available and in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as any Credit Party shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements (other than on Form S-8 or a similar form) which any Credit Party may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by any Credit Party, and in any event within 10 days thereof, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to any such corporation by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default on the part of any Credit Party, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the applicable Credit Party is taking or proposes to take with respect thereto; or (2) any Indebtedness of any Credit Party being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate of the Company describing the nature and status of such matters and what action the applicable Credit Party is taking or proposes to take with respect thereto;
(i) promptly and in any event within 10 days after any Credit Party or any ERISA Affiliate knows or, in the case of a Pension Plan has reason to know, that any event or condition described in Section 4.19 hereof has occurred or exists, or is reasonably likely to occur or exist, an Officer's Certificate of the Company setting forth information as to such occurrence and what action, if any, the applicable Credit Party or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (i) required to be filed by any Credit Party or any ERISA Affiliate or the plan administrator of any Pension Plan controlled by any Credit Party, or any ERISA Affiliate with the Internal Revenue Service or the PBGC, (ii) received by any Credit Party, or any ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan, or (iii) proposed to be given;
(j) within five Business Days after the annual report (Form 5500) of each Plan or Pension Plan is filed with the Internal Revenue Service, a complete copy thereof (including schedules and attachments) to the Purchaser;
(k) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7, an Officer's Certificate of the Company setting forth the details of such Material Adverse Effect and stating what action the applicable Credit Party Borrower has taken or proposes to take with respect thereto;
(l) promptly (and in any event within 10 days) after the Parent or the Company knows of (i) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting any Credit Party or any Property of any of them, or (ii) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely . The Banks are authorized to have a Material Adverse Effect, an Officer's Certificate of the Company describing the nature and status of such matter in reasonable detail;
(m) as soon as available (and in any event not later than 30 days after the beginning of each fiscal year of the Company), deliver a copy of a consolidated and consolidating budget of the Credit Parties, in each case prepared by the Company for such fiscal yearany financial statement delivered to it to any regulatory body having jurisdiction over them, and all amendments thereto which may be in effect from time to time;
(n) at least once in each fiscal year, a report of a reputable insurance broker with respect to all insurance maintained by the Credit Parties, together with a certificate of insurance evidencing the effectiveness of the policies of insurance required to be maintained by the provisions of Section 9.4(a);
(o) together with each delivery of financial statements pursuant to subsection (b) or (c) of this Section 7, a report as disclose same to any new trademark, patent and copyright registrations prospective assignees or applications, license agreements or other matters referred to in Section 5.2 of the Intellectual Property Security Agreement, together with any instruments of assignment with respect thereto required thereunder;
(p) promptly following, and in any event within ten Business Days of any Casualty or Taking involving Property of any Credit Party with a value equal to or greater than the Material Loss Amount, an Officer's Certificate of the Company describing the nature and status of such occurrence;
(q) promptly (and in any event within 10 days) after the Parent or the Company knows of the institution of any action, suit or proceeding against any Credit Party pursuant to Section 1300 et seq. of the California General Corporation Law or otherwise relating to the Transactions;
(r) to the extent not otherwise provided for in Section 14.7, as soon as available, any press release or other public announcement or statement by any Credit Party; and
(s) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of the Credit Parties that the Purchaser may from time to time reasonably request and which is capable of being obtained, produced or generated by such Credit Party or of which any of them has knowledge. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the SEC in connection with any resales of Notes and Warrants that may hereafter be effected pursuant to the provisions of such Rule, (a) each prospective purchaser of Notes or Warrants designated by a holder thereof shall have the right to obtain from the Parent, upon the written request of such holder, copies of (i) the consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal year of the Company (or, if such fiscal year shall have ended within the preceding 90 days, as of the end of the next preceding fiscal year), together with the related consolidated statements of income, shareholders' equity and cash flows for the fiscal year then ended, (ii) similar financial statements for such part of the two preceding fiscal years of the Parent (which financial statements, and the financial statements referred to in clause (i) of this paragraph, shall be audited to the extent reasonably available), (iii) a consolidated balance sheet of the Credit Parties as of the end of then most recently completed fiscal quarter of the Parent (or, if such fiscal quarter shall have ended within the preceding 60 days, as of the end of the next preceding fiscal quarter), together with the related consolidated statements of income, shareholders' equity and cash flows for the portion of the current fiscal year then ended, and (iv) any other information that is necessary to comply with such Rule, and (b) each such holder and each such prospective purchaser shall have the right to obtain from the Parent, upon the written request of such holder, a very brief statement of the nature of the business of the Credit Parties and the products and services it offers, dated as of a date within 12 months prior to the date of resale of such Notes or Warrants (as the case may be). The Company and the Parent will keep at its principal executive office a true copy of this Agreement, and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or Warrants or by any prospective purchaser of Notes or Warrants designated in writing by the holder thereofparticipant Lenders.
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