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: (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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company; (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 Company, (i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and (ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1; (c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company, (i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange; (g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereof.
Appears in 2 contracts
Samples: Note Purchase Agreement (Horizon Medical Products Inc), Note Purchase Agreement (Horizon Medical Products Inc)
Financial Statements and Information. The Company will (a) In the event that any such information need not be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, Product Sub shall furnish to the PurchaserInvestor, until all on or before the forty-fifth (45th) day after the close of each of the Obligations have been indefeasibly paid in full and no Notes are outstanding first three quarters of each fiscal year and the Termination Date has occurred:
seventy-fifth (a75th) as soon as available and in any event within 30 days day after the end close of the fourth quarter of each monthfiscal year, copies of as applicable, the unaudited consolidated and consolidating balance sheets sheet of the Company as at the close of such quarter and unaudited consolidated statement of operations and comprehensive loss and cash flows of the end of such month and the related consolidated and consolidating statements of income Company for such month and for quarter, duly certified by the portion chief financial officer of the fiscal year ended Company as having been prepared in accordance with GAAP. Concurrently with the last day delivery or filing of such monththe documents described in the preceding sentence, and stating in comparative form Product Sub shall furnish to the corresponding figures from Investor a certificate of the prior year, all Certified by the Chief Financial Officer chief financial officer of the Company;, which certificate shall include a statement that such officer has no knowledge, except as specifically stated, of any condition, event or act which constitutes a Put Option Event.
(b) as soon as available and in In the event that any event within 45 days such information need not be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, Product Sub shall furnish to the Investor, on or before the 135th day after the end close of each quarterly accounting period (other than the fourth quarterly accounting period) in each fiscal year of year, the Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, in each case as of the end of such accounting period, together with, in each case, the related consolidated and consolidating ’s audited financial 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, in each case as of the end close 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 including the consolidated budget of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries balance sheet as at the end of such fiscal year and the consolidated results statement of operations and cash flows of the Company for such fiscal year year, in conformity each case accompanied by the report thereon of the Company’s independent registered public accounting firm. Concurrently with GAAP the delivery or filing of the documents described in the preceding sentence, Product Sub shall furnish to the Investor a certificate of the chief financial officer of the Company, which certificate shall include a statement that such officer has no knowledge, except as specifically stated, of any condition, event or act which constitutes a Put Option Event.
(c) Product Sub shall, promptly upon receipt thereof, forward or cause to be forwarded to the Investor copies of all Notices, reports, updates and other data or information (i) pertaining to the Revenue Interest Payments and other Collateral, (ii) received from any Third Party which relate to events or circumstances that could reasonably be expected to have a Material Adverse Effect or that relates to Marketing Authorizations or (iii) received from any Person that relate to the Intellectual Property and that could reasonably be expected to have a Material Adverse Effect, or that the examination by Investor reasonably requests.
(d) Product Sub shall permit Investor and its Representatives, once per calendar quarter, during normal business hours and upon at least ten (10) Business Days’ prior written notice to Product Sub (provided that, after the Accountants in connection occurrence and during the continuance of a Put Option Event, Investor shall have the right, as often, at such times and with such consolidated prior notice, USActive 42004257.15 -48- as Investor determines in its reasonable discretion), to discuss, with officers of Product Sub and the Company, the business, operations, properties and financial and other condition of Product Sub and the Company, to discuss the Product, to discuss regulatory activities with respect thereto, to discuss business development and Commercialization efforts relating to the Product, to verify compliance with the provisions of the Transaction Documents regarding receipt and application of the Revenue Interest Payments. Additionally, Product Sub shall permit Investor and its Representatives, once per calendar year, during normal business hours and upon at least ten (10) Business Days’ prior written notice to Product Sub (provided that, after the occurrence and during the continuance of a Put Option Event, Investor shall have the right, as often, at such times and with such prior notice, as Investor determines in its reasonable discretion) to visit the offices and properties of Product Sub and Company where books and records relating or pertaining to the Revenue Interest Payments and the Collateral are kept and maintained (or, at Investor’s option, to conduct a meeting by telecommunications), and to inspect and make extracts from and copies of the books and records of Product Sub and Company relating or pertaining to the Revenue Interest Payments and the Collateral. To the extent Product Sub or Company are entitled to visit, inspect or audit books and records of any third party relating or pertaining to the Revenue Interest or the Collateral, whether in person or electronically, if either Product Sub (or Company on behalf of Product Sub) conducts such a visit, inspection or audit, such Party will share with the Investor a copy of the results of such visit, inspection or audit.
(e) On a quarterly basis, within five (5) Business Days after the filing of its quarterly or annual report required to be filed with the SEC pursuant to Section 13 or 15(d), but in any event not later than the date required pursuant to Sections 8.03(a) and (b), respectively, Product Sub shall deliver or cause to be delivered to the Investor a written report in form reasonably satisfactory to the Investor setting forth the amount of gross sales of the Product in each country in the Territory for the Calendar Quarter in which Quarterly Sales Amounts occurred during the applicable Calendar Quarter, an itemized reasonably detailed calculation of Net Sales in the U.S. in such Calendar Quarter, and a calculation of the Revenue Interest Payment Amount for the applicable Calendar Quarter, showing the Applicable Percentage applied thereto. For two (2) years after each sale of the Product made by Product Sub or any of its Affiliates, Product Sub shall keep (and shall ensure that its Affiliates shall keep) complete and accurate records of such sale in sufficient detail to confirm the accuracy of the applicable Revenue Interests payable in respect thereof. Product Sub shall use commercially reasonable efforts to include in each contract of Product Sub related to the Commercialization of the Product entered into on or after the Closing Date, an acknowledgement and consent to the obligations of Product Sub pursuant to this Section 8.03(e) and provide that the counterparty to such contract shall furnish to Product Sub all information necessary for Product Sub to comply with this Section 8.03(e) and calculate the Revenue Interests that are payable as set forth in this Agreement.
(f) All written information supplied by or on behalf of Product Sub to the Investor pursuant to this Section 8.03 (other than Sections 8.03(a) and 8.03(b)) shall be accurate and complete in all material respects as of its date or the date so supplied and the financial statements has been made provided pursuant to Sections 8.03(a) and 8.03(b) fairly present in accordance with generally accepted auditing standardsall material respects the financial positions and results of operations as of the dates indicated therein, and (y) subject, USActive 42004257.15 -49- in the case of such unaudited consolidating quarterly financial statementsstatements and any other non-audited financial information, Certified by to normal year end and other adjustments. For the Chief Financial Officer avoidance of doubt, Product Sub makes no representations or warranties regarding the Company; and
(ii) a written statement accuracy or completeness 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 information it receives from a breach Third Party that it is required to furnish to the Investor pursuant to this Section 8.03, unless to the actual Knowledge of Product Sub or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company such information is inaccurate or incomplete, in the fulfillment of any of the terms, covenants, provisions which case Product Sub 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 Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send specify such inaccuracy or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofincompleteness.
Appears in 1 contract
Samples: Revenue Interest Agreement (La Jolla Pharmaceutical Co)
Financial Statements and Information. The Company will Maker shall furnish to the PurchaserPayee, until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurredso long as this Note shall be outstanding:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(b) as soon as available and in any event within 45 days after the end of each the first, second and third quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) Maker, copies of the consolidated balance sheet of Maker and consolidating balance sheets of the Company, in each case its Subsidiaries as of the end of such accounting period, together with, in each case, period and copies of the related consolidated and consolidating statements of income, shareholders' income and changes in shareholders equity and cash flows for such accounting period of Maker and its Subsidiaries for the portion of the fiscal year ended with the last day of such quarterly accounting periodperiod certified by the principal financial officer of Maker to present fairly in all material respects the information contained therein; PROVIDED, all in reasonable detail and stating in comparative form HOWEVER, that delivery of a copy of a Quarterly Report on Form 10-Q (iwithout exhibits unless requested by Payee) 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 of the Operating Company and its Subsidiaries for such period, all Certified by quarterly period filed with the Chief Financial Officer Commission shall be deemed to satisfy the requirements of the Company, this paragraph (a); and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(cb) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) Maker, copies of the audited consolidated and unaudited consolidating balance sheets sheet of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 Company and its Subsidiaries, 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 Company Maker and its Subsidiaries as of the end of and for the comparable period in the prior such fiscal year and the corresponding figures from the consolidated budget copies of the Company related audited consolidated statements of income and changes in shareholders equity and cash flows of Maker and its Subsidiaries for such period)fiscal year; PROVIDED, and describing any significant events relating to the Company or its Subsidiaries occurring during such periodHOWEVER, together with copies that delivery of any financial statements or budget information and any projections and any management discussion and analysis a copy of an Annual Report on Form 10-K (without exhibits unless requested by Payee) of the financial condition and results of operations of the Operating Company and its Subsidiaries provided by the Company during 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file year filed with the SEC or with any securities exchange;
(g) promptly after Commission shall be deemed to satisfy the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company will keep at its principal executive office a true copy requirements 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 by any prospective purchaser of Notes designated in writing by the holder thereofparagraph (b).
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:
(a) as soon as available All financial statements prepared pursuant to this Section 8.3 shall present fairly the financial position and operating results of the Company and shall be prepared in any event within 30 accordance with generally accepted accounting principles on an accrual basis for each Fiscal Year of the Company during the term of this Agreement.
(b) Within forty-five (45) days after the end of each monthFiscal Quarter of each Fiscal Year after the date of this Agreement, copies the Administrative Member shall prepare and submit or cause to be prepared and submitted to the Members an unaudited statement of income and expenses and statement of Cash Flow for the consolidated Company for such Fiscal Quarter and consolidating an unaudited balance sheets sheet of the Company 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 Quarter, including Members' equity, in each case prepared in accordance with the last day of such month, and stating in comparative form the corresponding figures from the prior generally accepted accounting principles consistently applied (subject to normal year, all Certified by the Chief Financial Officer of the Company;-end adjustments).
(bc) as soon as available and in any event within 45 Within ninety (90) days after the end of each quarterly accounting period (other than Fiscal Year during the fourth quarterly accounting period) in each fiscal year term of this Agreement, the Company,
Administrative Member shall prepare and submit or cause to be prepared and submitted to the Members (i) copies of the consolidated and consolidating an unaudited balance sheets of the Company, in each case sheet dated as of the end of such accounting periodFiscal Year, including Members' equity, together with, in each case, the related consolidated with an unaudited statement of income and consolidating statements expenses and statement of income, shareholders' equity and cash flows for such accounting period and Cash Flow for the portion of the fiscal year ended with the last day of Company during 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
Fiscal Year; (ii) a written statement of report summarizing the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available fees and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of other remuneration paid by the Company for such fiscal year, Fiscal Year to the Members and any Affiliate or Affiliates thereof; and (xiii) a statement showing any amounts contributed by or distributed to the Members in the case of each respect of such audited consolidated financial statementsFiscal Year, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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;including Contribution Loans.
(d) concurrently with The Administrative Member shall provide to the financial statements furnished pursuant to subsections (b) Members such other reports and (c) of this Section 7, an Officer's Certificate information concerning the business and affairs of the Company stating that, based upon such examination or investigation and review of this Agreement as in may be required by 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 existedAct, the nature and period of existence thereof and what action the Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 Code or by any prospective purchaser other law or regulation of Notes designated in writing by any regulatory body applicable to the holder thereofCompany.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CNL Hospitality Properties Inc)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser, until all each of the Obligations have been indefeasibly paid Lenders (either in full and no Notes are outstanding and the Termination Date has occurred:hard copy or electronically):
(a) as soon as available available, and in any event within 30 days 90 days, after the end of each month, copies fiscal year (i) a copy of the consolidated and consolidating balance sheets annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche or another independent certified public accountant of recognized national standing, that such statements have been prepared in accordance with GAAP, consistently applied, except as may be explained in such opinion, and fairly present in all material respects the financial condition of the end of such month Company and its Subsidiaries on a consolidated basis and the related consolidated results of its and consolidating statements of income for such month their operations as at the dates and for the portion periods indicated and (ii) a copy of the fiscal year ended with the last day of such monthreconciliation sheet, and stating in comparative form the corresponding figures from the prior year, all Certified certified by the Chief Financial Officer a financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;
(b) as soon as available available, and in any event within 45 days 60 days, after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) copies a copy of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries as at the end of such fiscal year quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated results statement of operations cash flows, all in reasonable detail and cash flows for such fiscal year in conformity with GAAP and that certified by a financial officer of the examination by the Accountants in connection with such consolidated financial statements has Company to have been made prepared in accordance with generally accepted auditing standardsGAAP, consistently applied, except as may be explained in such certificate and (y) except, in the case of such unaudited consolidating financial interim statements, Certified by for year end audit adjustments and the Chief Financial Officer absence of footnotes, and as fairly presenting in all material respects the financial condition of the Company; and
Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a written statement copy of the Accountants (x) reconciliation sheet, certified by the Company, setting forth computations the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in reasonable detail showing whether or not as this paragraph (b) in order to arrive at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such consolidated financial statements they obtained no knowledge of any default by the Company in and its Restricted Subsidiaries;
(c) promptly after the fulfillment filing thereof, copies of any all statements and reports filed with the Securities and Exchange Commission, other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing 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 securities offerings for which registration statements were previously filed and status thereofForms D;
(d) concurrently with promptly, and in any case within five Business Days, after any officer of the financial statements furnished pursuant to subsections (b) and (c) Company obtains knowledge that an Event of this Section 7Default or Default has occurred, an Officer's ’s Certificate specifying the nature 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 existedDefault, the nature and period of existence thereof thereof, and what action the Company has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) taken and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; and
(e) promptly after request, such additional financial or other information as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request from time to time. All financial statements specified in clauses (2a) any Indebtedness and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company will deliver to each Lender (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(j), 9.03, 9.05 and 9.06 or reflecting any of its Subsidiaries being declared due noncompliance therewith as at the applicable date, and payable before its expressed maturity(ii) an Officer’s Certificate stating that, or any holder to the knowledge of such Indebtedness having officer, there exists no Default or Event of Default or if, to the right to declare knowledge of 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 officer any such default) under such IndebtednessDefault or Event of Default exists, an Officer's Certificate of the Company describing stating the nature and status thereof, the period of such matters existence thereof, and what action the Company or such Subsidiary is taking or has taken and proposes to take with respect thereto; The Company will keep at its principal executive office . Each Lender is authorized to deliver a true copy of this Agreementany financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and regulations. Financial statements required to be delivered pursuant to Section 8.02(a)(i) or (b)(i) or statements and reports required to be delivered pursuant to Section 8.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which notice is received by the Administrative Agent that such information has been posted on the Company’s website on the Internet at xxx.xxxxxxxxxxxxxx.xxx, at xxx.xxx/xxxxx/searchdgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge (except in the case of statements of beneficial ownership of securities on Form 3, 4, or 5 which shall be deemed to have been delivered when so posted regardless of whether such notice is received). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and cause the same each Lender shall be solely responsible for requesting delivery to be available for inspection at said office during normal business hours by any holder it or maintaining its copies of Notes or by any prospective purchaser of Notes designated in writing by the holder thereofsuch documents.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to Purchaser 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 occurredinformation:
(a) as 5.1.1 As soon as available and available, but in any event within 30 ninety (90) days after the end of each month, copies of the consolidated and consolidating balance sheets of the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(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 Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end close of each fiscal year of the Company,
(i) copies of the , audited consolidated and unaudited consolidating balance sheets of the Company, in Company and of each case of its Subsidiaries as of the end close of such fiscal year, together with, in each case, the related and audited consolidated and unaudited consolidating statements of income, shareholders' equity income and retained earnings and cash flows of the Company and of each of its Subsidiaries for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form together with (ia) the respective audited consolidated and unaudited consolidating figures as copies of the end reports and certificates relating thereto of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent certified public accountants of recognized 47 national standing selected by the Company and acceptable reasonably satisfactory to Purchaser, (b) such accountants' letter to management relating to such financial statements, and (c) a report of the Purchaser chief executive officer or the chief financial officer of the Company containing management's discussion and analysis of the Company's financial condition, results of operations and affairs for such year.
5.1.2 As soon as available but in any event within forty-five (45) days after the "Accountants")close of each quarter of each fiscal year of the Company, which report shall be unqualified as to going concern unaudited consolidated and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position consolidating balance sheets of the Company and of each of its Subsidiaries as at of the last day of such quarter and unaudited consolidated and consolidating statements of income and retained earnings and cash flows of the Company and of each of its Subsidiaries for such quarter and for the period from the beginning of the fiscal year to the end of such fiscal year quarter, each such balance sheet and statement of income and retained earnings and changes in financial position to be certified by the chief executive officer 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 chief 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 officer of the Company; and
(ii) a written statement of the Accountants (x) setting forth computations , in reasonable detail showing whether or not his individual capacity, as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that fairly presenting in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 all material respects the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness operation of the Company or any of its Subsidiaries being declared due and payable before its expressed maturitysuch Subsidiary, 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 provided that any such default) under such Indebtedness, an Officer's Certificate of certificate may state that the Company describing the nature accompanying balance sheet and status of such matters and what action the Company or such Subsidiary is taking or proposes statements are subject to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofyear-end adjustments.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (LIVE VENTURES Inc)
Financial Statements and Information. The Company will furnish Furnish or cause to be furnished to Purchaser 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 occurredinformation:
(a) as 5.1.1 As soon as available and available, but in any event within 30 ninety (90) days after the end of each month, copies of the consolidated and consolidating balance sheets of the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(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 Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end close of each fiscal year of the Company,
(i) copies of the , audited consolidated and unaudited consolidating balance sheets of the Company, in Company and of each case of its Subsidiaries as of the end close of such fiscal year, together with, in each case, the related and audited consolidated and unaudited consolidating statements of income, shareholders' equity income and retained earnings and cash flows of the Company and of each of its Subsidiaries for such fiscal year, and the notes thereto, all in reasonable detail and stating in comparative form together with (ia) the respective audited consolidated and unaudited consolidating figures as copies of the end reports and certificates relating thereto of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent certified public accountants of recognized 47 national standing selected by the Company and acceptable reasonably satisfactory to Purchaser, (b) such accountants’ letter to management relating to such financial statements, and (c) a report of the Purchaser chief executive officer or the chief financial officer of the Company containing management’s discussion and analysis of the Company’s financial condition, results of operations and affairs for such year.
5.1.2 As soon as available but in any event within forty-five (45) days after the "Accountants")close of each quarter of each fiscal year of the Company, which report shall be unqualified as to going concern unaudited consolidated and scope of audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position consolidating balance sheets of the Company and of each of its Subsidiaries as at of the last day of such quarter and unaudited consolidated and consolidating statements of income and retained earnings and cash flows of the Company and of each of its Subsidiaries for such quarter and for the period from the beginning of the fiscal year to the end of such fiscal year quarter, each such balance sheet and statement of income and retained earnings and changes in financial position to be certified by the chief executive officer 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 chief 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 officer of the Company; and
(ii) a written statement of the Accountants (x) setting forth computations , in reasonable detail showing whether or not his individual capacity, as at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that fairly presenting in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 all material respects the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness operation of the Company or any of its Subsidiaries being declared due and payable before its expressed maturitysuch Subsidiary, 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 provided that any such default) under such Indebtedness, an Officer's Certificate of certificate may state that the Company describing the nature accompanying balance sheet and status of such matters and what action the Company or such Subsidiary is taking or proposes statements are subject to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofyear-end adjustments.
Appears in 1 contract
Financial Statements and Information. The Company will shall furnish to the Purchaser, until all each Holder of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurreda Note:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(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 Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days practicable after the end of each fiscal year of the Company,, and in any event within ninety (90) days thereafter, audited consolidated financial statements (including a balance sheet, statement of income and statement of cash flow) of the Company and its Subsidiaries, prepared in accordance with Israeli GAAP (with proper reconciliation to GAAP) and certified by a firm of independent public accountants associated with one of the "big five" accounting firms;
(iii) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, in each case as of within forty-five (45) days after the end of such fiscal yeareach quarter, together with, in each case, the related audited a 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated results statements of operations income 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 flows, unaudited but prepared in accordance with generally accepted auditing standards, Israeli GAAP (with proper reconciliation to GAAP) and (y) in the case of such unaudited consolidating financial statements, Certified certified by the Chief Financial Officer of the Company; and
(ii) a written statement such consolidated balance sheet to be as of the Accountants (x) setting forth computations in reasonable detail showing whether or not as at the end of such quarter and such consolidated statements of income and cash flows to be as of the end of such quarter and for the period from the beginning of the fiscal year there existed any Default or Event to the end of Default resulting from a breach or violation of Section 10.1such quarter, and (y) stating that in making each case with comparative statements for the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 thereofprior fiscal year;
(diii) concurrently with any filing with the financial SEC or equivalent Israeli governmental entity, all reports, proxy materials, registration statements furnished and filings made pursuant to subsections the Exchange Act or other applicable securities laws;
(biv) and promptly after becoming aware of (cA) the existence 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 Default, (B) any default or have existed, the nature and period event of existence thereof and what action the Company has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) default under any Indebtedness of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, and (C) any Litigation or proceeding affecting the Company or any of its Subsidiaries in which the amount claimed is in excess of $1,000,000 or in which injunctive relief is sought which if obtained could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (D) any event within 10 days thereofchange that has or could reasonably be expected to have a Material Adverse Effect, copies of any management letters and any reports as to material inadequacies in accounting controls (including reports as to a certificate from 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 the Company, an Officer's Certificate Chief Financial Officer of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or and
(2v) any Indebtedness such other information, including financial statements and computations, relating to the performance of the provisions of this Note and the affairs of the Company or and any of its Subsidiaries being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right as each Holder may from time 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereoftime reasonably request.
Appears in 1 contract
Samples: Convertible Note (Shamrock Holdings of California Inc)
Financial Statements and Information. The Company will furnish keep books of account and prepare financial statements and will cause to be furnished to each Investor the Purchaser, until following reports (all of the Obligations have been indefeasibly paid foregoing and following to be kept and prepared in full and no Notes are outstanding and accordance with United States generally accepted accounting principles applied on a consistent basis), provided, however, that the Termination Date Company shall not be obligated pursuant to this Section 3.1(a) to provide financial information to solely to the extent that such information would reveal competitively sensitive information to any person whom the Board of Directors of the Company has occurred:determined is a competitor of the Company.
(ai) as As soon as available and practicable, but in any event within 30 days after the end of each month, copies of the consolidated one hundred and consolidating balance sheets of the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
eighty (b180) 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 Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of , the Company will furnish to each Investor audited consolidated and unaudited consolidating balance sheets of the CompanyCompany and its subsidiaries, in each case if any, as of at the end of such fiscal year, together withand audited consolidated statements of income and losses, stockholders’ equity and cash flows of the Company and its subsidiaries, if any, for such fiscal year.
(ii) As soon as practicable after the end of each month, but in any event within thirty (30) days after the end of each casesuch month, the related audited Company will furnish to each Investor the unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such month and for the year-to-date ended as of the end of such month, and its unaudited consolidating consolidated statements of incomeincome and losses, shareholders' stockholders’ equity and cash flows for such fiscal month and for the year, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures -to-date ended as of the end of such month, except that such financial statements may not contain notes and for will be subject to year-end adjustment.
(iii) As soon as practicable after the previous fiscal year or part thereof and adoption thereof, but in any event not less than thirty (ii30) days prior to the corresponding figures from the consolidated budget beginning of the Company for such each fiscal year, the Company will furnish to each Investor an annual operating plan, a budget for each fiscal year (x) which will include monthly projections in the case same format as the Company’s financial statements), and, as soon as practicable after the adoption thereof, copies of any revisions to such budget or annual operating plan.
(iv) As soon as practicable after the end of each calendar quarter of the fiscal year, but in any event within thirty (30) days after the end of each such audited consolidated financial statementscalendar quarter, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and acceptable will furnish to each Investor 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 capitalization table of 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 orsubsidiaries, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action the Company 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 Company and its Subsidiariesany, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofcalendar quarter.
Appears in 1 contract
Samples: Investor Rights Agreement (Protagonist Therapeutics, Inc)
Financial Statements and Information. The Company will furnish to the Purchasereach Subscriber, until all so long as it shall be obligated to subscribe for and purchase or shall hold any of the Obligations have been indefeasibly paid Notes or the C Preferred Shares, and each other institutional holder of any of the Notes or the C Preferred Shares, in full and no Notes are outstanding and the Termination Date has occurredduplicate:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(b1) as soon as available and in any event within 45 days after the end of each the first, second and third quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) , copies of the a consolidated and consolidating balance sheets sheet of the Company, in each case Company and its Subsidiaries 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 and cash flows for such accounting period of the Company and its Subsidiaries for the portion of the fiscal year ended with the last day of such quarterly accounting period, all in reasonable detail 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) all certified by the corresponding figures from the consolidated budget principal financial officer of the Company to present fairly the information contained therein, subject to year-end and its Subsidiaries for audit adjustments (it being understood that such period, all Certified delivery obligation shall be deemed satisfied by the Chief Financial Officer Company's filing of the Company, Quarterly Report on Form 10-Q in respect of such period with the SEC pursuant to Section 13(a) of the Exchange Act so long as such Report otherwise meets the requirements of this Clause (A)); and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c2) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) , copies of the audited a consolidated and unaudited consolidating balance sheets sheet of the Company, in each case Company and its Subsidiaries 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 and cash flows of the Company and its 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 and (ii) the corresponding figures from the consolidated budget of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, all accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and acceptable to the Purchaser (the "Accountants"), which report it being understood such delivery obligation 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, deemed satisfied by the consolidated financial position Company's filing of the Company and its Subsidiaries as at the end Annual Report on Form 10-K in respect of such fiscal year and with 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 (ySEC pursuant to Section 13(a) in the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer of the Company; and
(ii) a written statement of Securities Act so long as such Report otherwise meets 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company in the fulfillment of any of the terms, covenants, provisions or conditions requirements 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 thereofClause (B));
(d3) concurrently with the financial statements for each quarterly accounting period and for each fiscal year of the Company, furnished pursuant to subsections Subsections (bA) and (cB) of this Section 7Section, an Officer's Certificate a certificate of the President, a Vice President or the Treasurer 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 neither the Company nor any of Default exists its Subsidiaries is or has existed during such period been in default in the performance or observance of any of the terms, covenants or conditions hereof, or, if the Company or any of its Subsidiaries shall be or shall have been in default, specifying all such a Default or Event of Default shall exist or have existeddefaults, and the nature and period of existence thereof thereof, and what action the Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g4) promptly after the receipt thereof by the Company or any of its Subsidiaries, and in any event within 10 15 days thereofafter such receipt, 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 the Company by the Accountants independent accountants in connection with any audit of such corporation the Company or of any Subsidiary made by the Accountantssuch accountants;
(h5) promptly (after the same are available and in any event within 5 days15 days thereof, copies of all such proxy statements, financial statements and reports as the Company shall send or make available generally to any of its security holders 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 Subsidiary may file with the SEC or with any securities exchange (it being understood that such delivery obligation shall be deemed satisfied by the Company's filing of the applicable report or statement with the SEC pursuant to the Exchange Act so long as such report or statement otherwise meets the requirements of this Clause (E));
(6) promptly after becoming a responsible officer shall become aware of (1) the existence of any a Default or Event of Default on the part Default, a certificate of the CompanyPresident, an Officer's Certificate a Vice President or a senior financial officer of the Company specifying the nature and period of existence thereof and what action the Company or a Subsidiary, as the case may be, is taking or proposes to take with respect thereto; or and
(27) any Indebtedness such other information, including financial statements and computations, relating to the performance of the provisions of this Agreement and the affairs of the Company or and any of its Subsidiaries being declared due and payable before its expressed maturity, as any of the Subscribers or any such holder may from time to time reasonably request (including without limitation the information the Company must deliver to any holder or to any prospective transferee of a Note in order to permit the sale or other transfer of such Indebtedness having the right Note pursuant to declare such Indebtedness due and payable before its expressed maturity, because Rule 144A of the occurrence of any default (SEC 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 Company or such Subsidiary is taking or proposes to take with respect thereto; similar rule then in effect). The Company will keep at its principal executive office 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 Note or by any prospective purchaser subscriber of Notes a Note designated in writing by the a holder thereof.
Appears in 1 contract
Samples: Subscription Agreement (Proxymed Inc /Ft Lauderdale/)
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 occurredBank:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(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 Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(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 Company,
(i) copies of the an audited consolidated and unaudited consolidating balance sheets sheet of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company Borrower and its Subsidiaries as at the end of such fiscal year year, together with the related consolidated and consolidating statements of operations, stockholder's equity and cash flows as of and for such fiscal year, setting forth in comparative form the figures for the preceding fiscal year, together with an unqualified report thereon of the Accountants.
(b) As soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year, a copy of an unaudited consolidated results and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of each such quarterly period, together with the related consolidated and 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 Company and its Subsidiaries, 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 Company Borrower and its Subsidiaries as of (subject to normal year-end adjustments).
(c) Concurrently with the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis delivery of the financial condition statements specified in paragraphs (a) and results (b) of operations this section, a Compliance Certificate, signed by a Financial Officer of the Company and its Subsidiaries provided by the Company during such period;Borrower.
(fd) 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 Such other information as the Company shall send or make available generally Bank may reasonably request from time to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereof.
Appears in 1 contract
Samples: Credit Agreement (Meta Group Inc)
Financial Statements and Information. The Company will furnish to President, with the Purchaser, until all assistance of the Obligations have been indefeasibly paid in full Management Team, shall cause the Company to prepare and no Notes are outstanding deliver to each Member and its representatives on the Termination Date has occurredBoard:
(a) as soon as available practicable (and in any event within 30 days not later than ten (10) Business Days prior to the Project progressing to the Operating Phase, and three (3) Business Days where a Project has progressed to the Operating Phase) after the end of each month, copies of the consolidated and consolidating balance sheets of the Company as of the end of such calendar month unaudited management accounts for that calendar month and Fiscal Year to date including a reconciliation of Expenditure incurred during that calendar month to the related consolidated forecast and consolidating statements of income for such month budgeted amounts specified in the relevant adopted Program 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 prior year, all Certified by the Chief Financial Officer of the CompanyBudget;
(b) as soon as available practicable, and in any event not later than sixty (60) days following the end of each Fiscal Year of the Company or within 45 such shorter period of time as may be required by Law, audited financial statements for the Company, together with a report thereon of the auditors of the Company, as selected by the Board;
(c) at the direction of a Member and within such periods as are reasonably specified by such Member, in respect of a financial year of a Member or of the ultimate holding company of that Member if that financial year comprises a period different to the financial year of the Company, (i) audited IFRS financial statements for the Company, together with a report thereon of such auditors as indicated by the directing Member, and (ii) unaudited quarterly IFRS financial statements comparing the financial results of the Company for such quarter and the portion of the current fiscal year then ended with the same periods of the previous fiscal year;
(d) as soon as practicable after the end of the first three (3) quarters of every Fiscal Year of the Company, but in any event no later than thirty (30) days after the end of each quarterly accounting period (other than such quarter, unaudited interim financial statements comparing the fourth quarterly accounting period) in each fiscal year of the Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 financial results of the Company for such quarter and the portion of the current fiscal year then ended with the same periods of the previous fiscal year;
(e) as soon as practicable, and in any event not later than sixty (x60) in days following the case end of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 Tax Year of the Company and its Subsidiaries or within such shorter period of time 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 may be required by the Accountants in connection with such consolidated Law, unaudited 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 for the Company; and
(iif) a written statement of the Accountants all financial information (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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company and budgets) shall be prepared 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 accordance with IFRS 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 Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofUS GAAP.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Trilogy Metals Inc.)
Financial Statements and Information. The Company will Maker shall furnish to the PurchaserXxxxxxx, until all of the Obligations have been indefeasibly paid in full and no Notes are outstanding and the Termination Date has occurredas agent for Payee, so long as this Note shall be outstanding:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(b) as soon as available and in any event within 45 days after the end of each the first, second and third quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) Maker, copies of the consolidated balance sheet of Maker and consolidating balance sheets of the Company, in each case its Subsidiaries as of the end of such accounting period, together with, in each case, period and copies of the related consolidated and consolidating statements of income, shareholders' income and changes in shareholders equity and cash flows for such accounting period of Maker and its Subsidiaries for the portion of the fiscal year ended with the last day of such quarterly accounting periodperiod certified by the principal financial officer of Maker to present fairly in all material respects the information contained therein; PROVIDED, all in reasonable detail and stating in comparative form HOWEVER, that delivery of a copy of a Quarterly Report on Form 10-Q (iwithout exhibits unless requested by Payee) 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 of the Operating Company and its Subsidiaries for such period, all Certified by quarterly period filed with the Chief Financial Officer Commission shall be deemed to satisfy the requirements of the Company, this paragraph (a); and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(cb) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) Maker, copies of the audited consolidated and unaudited consolidating balance sheets sheet of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 Company and its Subsidiaries, 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 Company Maker and its Subsidiaries as of the end of and for the comparable period in the prior such fiscal year and the corresponding figures from the consolidated budget copies of the Company related audited consolidated statements of income and changes in shareholders equity and cash flows of Maker and its Subsidiaries for such period)fiscal year; PROVIDED, and describing any significant events relating to the Company or its Subsidiaries occurring during such periodHOWEVER, together with copies that delivery of any financial statements or budget information and any projections and any management discussion and analysis a copy of an Annual Report on Form 10-K (without exhibits unless requested by Payee) of the financial condition and results of operations of the Operating Company and its Subsidiaries provided by the Company during 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file year filed with the SEC or with any securities exchange;
(g) promptly after Commission shall be deemed to satisfy the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company will keep at its principal executive office a true copy requirements 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 by any prospective purchaser of Notes designated in writing by the holder thereofparagraph (b).
Appears in 1 contract
Financial Statements and Information. The Company will furnish Borrower covenants and agrees that it shall 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 occurredLender:
(a) as soon as available and in any event within 30 Within fifteen (15) days after the end of each monthcalendar month ending January 31, copies February 28/29, April 30, May 31, July 31, August 31, October 31 and November 30, and forty five (45) days after the end of each calendar quarter ending March 31, June 30, September 30 and December 31 (i) financial and other information requested by Lender, including an internally-prepared (or publicly-filed, if available) statement of income and cash flow, balance sheet (and management letter, if the month end is also a Fiscal Quarter end), each of which shall provide comparisons to the prior year’s equivalent period and to the budgets provided to Lender, (ii) the certification of the consolidated chief financial officer of Borrower that all such financial statements and consolidating balance sheets schedules are complete and correct and present fairly in accordance with GAAP (subject to normal year-end adjustments), the financial position, the results of operations and the statements of cash flows of Borrower as at the end of such month (and for the Fiscal Quarter just ended, if applicable), and that there was no Default or Event of Default in existence as of such time; and (iii) if the month end is also a Fiscal Quarter end, a certificate in the form attached hereto as Exhibit B, containing the certification of Borrower’s chief financial officer that Borrower has complied with all of the Company covenants set forth in Section 8.12 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 prior year, all Certified by the Chief Financial Officer of the CompanyFiscal Quarter;
(b) as soon as available and in any event within 45 Within ninety (90) days after the end of each quarterly accounting period (other than the fourth quarterly accounting period) Fiscal Year, audited financial statements, consisting of balance sheets and statements of income and retained earnings and cash flows, setting forth in comparative form in each fiscal year case the figures for the previous Fiscal Year, which financial statements shall be prepared in accordance with GAAP, certified without qualification by a firm of the Company,
independent certified public accountants of recognized national standing selected by Borrower and acceptable to Lender, and accompanied by (i) copies a report from such accountants to the effect that in connection with their audit examination, nothing has come to their attention to cause them to believe that a Default or Event of Default had occurred and that, to the consolidated and consolidating balance sheets best of their knowledge, Borrower was in compliance with all the Company, covenants set forth in each case Section 8.12 as of the end of such accounting periodFiscal Year, 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 annual letter from the consolidated budget Borrower’s chief financial officer to such accountants in connection with their audit examination detailing Borrower’s contingent liabilities and material litigation matters involving Borrower, (iii) a certification of the Company chief financial officer of Borrower that all such financial statements are complete and its Subsidiaries for such periodcorrect and present fairly in accordance with GAAP the financial position, all Certified by the Chief Financial Officer results of operations and the Company, and
(ii) a written statement statements of the Chief Financial Officer cash flow of the Company setting forth computations in reasonable detail showing whether or not Borrower as at the end of such fiscal quarter year and for the period then ended and that there existed any was no Default or Event of Default resulting from in existence as of such time, and (iv) a breach or violation certificate in the form attached hereto as Exhibit B, containing the certification of Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year Borrower’s chief financial officer that Borrower has complied with all of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, covenants set forth in each case Section 8.12 as of the end of such fiscal yearFiscal Year;
(c) Within ninety (90) days after the start of any Fiscal Year, together with, in each case, the related audited consolidated an annual budget and unaudited consolidating statements of income, shareholders' equity and cash flows forecast for such fiscal yearFiscal Year, substantially in the form provided to Lender prior to the Closing Date, and the notes thereto, all in reasonable detail and stating in comparative form (i) the respective audited consolidated and unaudited consolidating figures containing such information as of the end of and for the previous fiscal year or part thereof and (ii) the corresponding figures from the consolidated budget of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and acceptable to the Purchaser (the "Accountants"), which report Lender 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 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 thereofrequest;
(d) concurrently with the financial statements furnished pursuant to subsections Within ninety (b90) and (c) days after completion of this Section 7crop harvesting, an Officer's Certificate of the Company stating that, based upon annual crop production report containing 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 Lender shall exist or have existed, the nature and period of existence thereof and what action the Company has taken, is taking or proposes to take with respect theretorequest;
(e) concurrently with the financial statements furnished pursuant to subsections (b) and (c) of this Section 7As soon as practicable, a brief management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company during such period;
(f) promptly after the same are available and but in any event within 10 days thereof, copies of all such proxy statements, financial statements, notices and reports as the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 one (1) Business Day after Borrower becomes aware of the existence of any Default or Event of Default on the part of the CompanyDefault, an Officer's Certificate of the Company or any development or other information which would have a Material Adverse Effect, telephonic notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries being declared due and payable before its expressed maturity, or any holder of such Indebtedness having Default or Event of Default or development or information, including the right anticipated effect thereof, which notice shall be promptly confirmed in writing within three (3) Business Days;
(f) Copies of all federal, state, local and foreign tax returns, information returns and reports in respect of income, franchise or other taxes on or measured by income (excluding sales, use or like taxes) filed by Borrower; and
(g) Such other information respecting Borrower’s business, financial condition or prospects as Lender may, from time 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofreasonably request.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Deliver to the Purchaser, until all each of the Obligations have been indefeasibly paid Lenders (either in full and no Notes are outstanding and the Termination Date has occurred:hard copy or electronically):
(a) as soon as available available, and in any event within 30 days 90 days, after the end of each month, copies fiscal year (i) a copy of the consolidated and consolidating balance sheets annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders' equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche or another independent certified public accountant of recognized national standing, that such statements have been prepared in accordance with GAAP, consistently applied, except as may be explained in such opinion, and fairly present in all material respects the financial condition of the end of such month Company and its Subsidiaries on a consolidated basis and the related consolidated results of its and consolidating statements of income for such month their operations as at the dates and for the portion periods indicated and (ii) a copy of the fiscal year ended with the last day of such monthreconciliation sheet, and stating in comparative form the corresponding figures from the prior year, all Certified certified by the Chief Financial Officer a financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;
(b) as soon as available available, and in any event within 45 days 60 days, after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) copies a copy of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries as at the end of such fiscal year quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders' equity and a consolidated results statement of operations cash flows, all in reasonable detail and cash flows for such fiscal year in conformity with GAAP and that certified by a financial officer of the examination by the Accountants in connection with such consolidated financial statements has Company to have been made prepared in accordance with generally accepted auditing standardsGAAP, consistently applied, except as may be explained in such certificate and (y) except, in the case of such unaudited consolidating financial interim statements, Certified by for year end audit adjustments and the Chief Financial Officer absence of footnotes, and as fairly presenting in all material respects the financial condition of the Company; and
Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a written statement copy of the Accountants (x) reconciliation sheet, certified by the Company, setting forth computations the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in reasonable detail showing whether or not as this paragraph (b) in order to arrive at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such consolidated financial statements they obtained no knowledge of any default by the Company in and its Restricted Subsidiaries;
(c) promptly after the fulfillment filing thereof, copies of any all statements and reports filed with the Securities and Exchange Commission, other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing 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 securities offerings for which registration statements were previously filed and status thereofForms D;
(d) concurrently with promptly, and in any case within five Business Days, after any officer of the financial statements furnished pursuant to subsections (b) and (c) Company obtains knowledge of this Section 7an Event of Default or Default, an Officer's Certificate specifying the nature 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 existedDefault, the nature and period of existence thereof thereof, and what action the Company has taken, is taking or taken and proposes to take with respect thereto;
(e) concurrently promptly upon the Company's or any Subsidiary's receipt thereof, copies of all notices received from the FCC regarding the termination, cancellation, revocation or taking of any other materially adverse action with respect to any Material FCC Licenses;
(f) promptly upon the financial statements furnished pursuant to subsections (b) and (c) Company's or any Subsidiary's receipt thereof, copies of this Section 7any notice received from any franchisors regarding the termination, a brief management discussion and analysis cancellation or revocation of the financial condition and results Franchise Agreements in connection with CATV Systems constituting 20% or more at any time of operations aggregate Basic Subscribers of the Company and its Subsidiaries;
(g) together with the delivery of the financial statements required under clauses (a) and (b) of this Section 8.02, but only if such information is not otherwise then publicly available, the Company shall deliver to the Administrative Agent a report setting forth with respect to the Company and its Subsidiaries (i) the number of Homes Passed by cable, (ii) the number of Basic Subscribers, and (iii) the number of Pay Units, in each case 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior preceding fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period)quarter or fiscal year, and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries case may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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;be; and
(h) promptly after request, such additional financial or other information as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request from time to time. All financial statements specified in clauses (a) and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company will deliver to each Lender (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(i), 9.03, 9.05 and 9.06 or reflecting any event within 5 daysnoncompliance therewith as at the applicable date, and (ii) after becoming aware an Officer's Certificate stating that, to the knowledge of (1) the existence of any such officer, there exists no Default or Event of Default on or if , to the part knowledge of such officer any such Default or Event of Default exists, stating the Companynature thereof, an Officer's Certificate the period of existence thereof, and what action the Company specifying has taken and proposes to take with respect thereto. Together with each delivery of financial statements required by clause (a) above, the Company will deliver to each Lender a written statement of said accountants that, in conducting the audit necessary to the issuance of an opinion on such financial statements, nothing came to their attention that caused them to believe that an Event of Default or Default relating to financial and accounting matters (an "Accounting Event of Default or Default") had occurred, or, if such accountants shall have obtained knowledge of any such Accounting Event of Default or Default, such statement shall specify the nature and period of existence thereof thereof; provided that such accountants shall not be liable directly or indirectly to any Lender for failure to obtain knowledge of any such Accounting Event of Default or Default, and what action provided further that in issuing such statement, such accountants shall not be required to go beyond those auditing procedures conducted in connection with their issuance of the Company opinion referred to above. Each Lender is taking or proposes authorized to take with respect thereto; deliver a copy of any financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and regulations. Financial statements required to be delivered pursuant to Section 8.02(a)(i) or (2b)(i) or statements and reports required to be delivered pursuant to Section 8.02(c)(to the extent any Indebtedness such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which notice is received by the Administrative Agent that such information has been posted on the Company's website on the Internet at xxx.xxx.xxx, at xxx.xxx/xxxxx/searchdgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge (except in the case of statements of beneficial ownership of securities on Form 3, 4, or 5 which shall be deemed to have been delivered when so posted regardless of whether such notice is received). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the Company documents referred to above, and each Lender shall be solely responsible for requesting delivery to it or any of maintaining its Subsidiaries being declared due and payable before its expressed maturity, or any holder copies 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofdocuments.
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:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the Company;
(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 Company,
(i) copies of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 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 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereof.
Appears in 1 contract
Samples: Note Purchase Agreement (Horizon Medical Products Inc)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser, until all each of the Obligations have been indefeasibly paid Banks in full and no Notes are outstanding and the Termination Date has occurredduplicate:
(a) as soon as available available, and in any event within 30 days 90 days, after the end of each month, copies fiscal year (i) a copy of the consolidated and consolidating balance sheets annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders' equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche or another independent certified public accountant of recognized standing satisfactory to the Banks, that such statements have been prepared in accordance with generally accepted accounting principles, consistently applied, except as may be explained in such opinion, and fairly present the financial condition of the end of such month Company and its Subsidiaries on a consolidated basis and the related consolidated results of its and consolidating statements of income for such month their operations as at the dates and for the portion periods indicated and (ii) a copy of the fiscal year ended with the last day of such monthreconciliation sheet, and stating in comparative form the corresponding figures from the prior year, all Certified certified by the Chief Financial Officer chief financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;
(b) as soon as available available, and in any event within 45 days 60 days, after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) copies a copy of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries as at the end of such fiscal year quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders' equity and a consolidated results statement of operations cash flows, all in reasonable detail and cash flows for such fiscal year in conformity with GAAP and that certified by a financial officer of the examination by the Accountants in connection with such consolidated financial statements has Company to have been made prepared in accordance with generally accepted auditing standardsGAAP, consistently applied (subject to year end audit adjustments and except for the absence of footnotes), except as may be explained in such certificate, and (y) in as fairly presenting the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer condition of the Company; and
Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a written statement copy of the Accountants (x) reconciliation sheet, certified by the chief financial officer of the Company, setting forth computations the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in reasonable detail showing whether or not as this paragraph (b) in order to arrive at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such consolidated financial statements they obtained no knowledge of any default by the Company in and its Restricted Subsidiaries;
(c) promptly after the fulfillment filing thereof, copies of any all statements and reports filed with the Securities and Exchange Commission other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing 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 securities offerings for which registration statements were previously filed and status thereofdelivered and Forms D;
(d) concurrently with promptly after any officer of the financial statements furnished pursuant to subsections (b) and (c) Company obtains knowledge of this Section 7an Event of Default or Default, an Officer's Certificate specifying the nature 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 existedDefault, the nature and period of existence thereof thereof, and what action the Company has taken, is taking or taken and proposes to take with respect thereto;
(e) concurrently promptly upon the Company's or any Subsidiary's receipt thereof, copies of all notices received from the FCC regarding the 38 45 termination, cancelation, revocation or taking of any other adverse action with respect to any Material FCC Licenses;
(f) promptly upon the financial statements furnished pursuant to subsections (b) and (c) Company's or any Subsidiary's receipt thereof, copies of this Section 7any notice received from any franchisors regarding the termination, a brief management discussion and analysis cancelation or revocation of the financial condition and results Franchise Agreements in connection with CATV Systems constituting 20% or more at any time of operations aggregate Basic Subscribers of the Company and its Subsidiaries;
(g) together with the delivery of the financial statements required under clauses (a) and (b) of this Section 8.02, the Company shall deliver to the Administrative Agent a report setting forth with respect to the Company and its Subsidiaries (i) the number of Homes Passed by cable, (ii) the number of Basic Subscribers, and (iii) the number of Pay Units, in each case 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior preceding fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period)quarter or fiscal year, and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries case may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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;be; and
(h) promptly after request, such additional financial or other information as the Administrative Agent or any Bank acting through the Administrative Agent may reasonably request from time to time. All financial statements specified in clauses (a) and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company will deliver to each Bank (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(g), 9.02, 9.03 and 9.06 or reflecting any event within 5 daysnon-compliance therewith as at the applicable date, and (ii) after becoming aware of (1) the existence of any Default or Event of Default on the part of the Company, an Officer's Certificate stating that there exists no Event of Default or, to the knowledge of such officer, any Default, or, if any such Event of Default or, to the knowledge of such officer, any Default exists, stating the nature thereof, the period of existence thereof, and what action the Company specifying has taken and proposes to take with respect thereto. Together with each delivery of financial statements required by clause (a) above, the Company will deliver to each Bank a written statement of said accountants that, in making the audit necessary to the certification of such financial statements, they have obtained no knowledge of any Event of Default or Default, or, if such accountants shall have obtained knowledge of any Event of Default or Default, they shall specify the nature and period of existence thereof and what action the Company is taking in such statement; provided, that such accountants shall not be liable directly or proposes indirectly to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right Bank for failure to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence obtain knowledge of any default (Event of 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 Company or such Subsidiary Default. Each Bank is taking or proposes authorized to take with respect thereto; The Company will keep at its principal executive office deliver a true copy of this Agreementany financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or by any prospective purchaser of Notes designated in writing by the holder thereofregulations.
Appears in 1 contract
Financial Statements and Information. The Company will furnish Deliver to the Purchaser, until all each of the Obligations have been indefeasibly paid Lenders (either in full and no Notes are outstanding and the Termination Date has occurred:hard copy or electronically):
(a) as soon as available available, and in any event within 30 days 90 days, after the end of each month, copies fiscal year (i) a copy of the consolidated and consolidating balance sheets annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche or another independent certified public accountant of recognized national standing, that such statements have been prepared in accordance with GAAP, consistently applied, except as may be explained in such opinion, and fairly present in all material respects the financial condition of the end of such month Company and its Subsidiaries on a consolidated basis and the related consolidated results of its and consolidating statements of income for such month their operations as at the dates and for the portion periods indicated and (ii) a copy of the fiscal year ended with the last day of such monthreconciliation sheet, and stating in comparative form the corresponding figures from the prior year, all Certified certified by the Chief Financial Officer a financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;
(b) as soon as available available, and in any event within 45 days 60 days, after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) copies a copy of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries as at the end of such fiscal year quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated results statement of operations cash flows, all in reasonable detail and cash flows for such fiscal year in conformity with GAAP and that certified by a financial officer of the examination by the Accountants in connection with such consolidated financial statements has Company to have been made prepared in accordance with generally accepted auditing standardsGAAP, consistently applied, except as may be explained in such certificate and (y) except, in the case of such unaudited consolidating financial interim statements, Certified by for year end audit adjustments and the Chief Financial Officer absence of footnotes, and as fairly presenting in all material respects the financial condition of the Company; and
Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a written statement copy of the Accountants (x) reconciliation sheet, certified by the Company, setting forth computations the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in reasonable detail showing whether or not as this paragraph (b) in order to arrive at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such consolidated financial statements they obtained no knowledge of any default by the Company in and its Restricted Subsidiaries;
(c) promptly after the fulfillment filing thereof, copies of any all statements and reports filed with the Securities and Exchange Commission, other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing 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 securities offerings for which registration statements were previously filed and status thereofForms D;
(d) concurrently with promptly, and in any case within five Business Days, after any officer of the financial statements furnished pursuant to subsections (b) and (c) Company obtains knowledge of this Section 7an Event of Default or Default, an Officer's ’s Certificate specifying the nature 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 existedDefault, the nature and period of existence thereof thereof, and what action the Company has taken, is taking or taken and proposes to take with respect thereto;
(e) concurrently with promptly upon the financial statements furnished pursuant to subsections (b) and (c) Company’s or any Subsidiary’s receipt thereof, copies of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures all notices received from the consolidated budget of FCC regarding the Company and its Subsidiaries for such period)termination, and describing any significant events relating to the Company cancellation, revocation or its Subsidiaries occurring during such period, together with copies taking of any financial statements or budget information and other materially adverse action with respect to any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company during such period;Material FCC Licenses; and
(f) promptly after the same are available and in any event within 10 days thereofrequest, copies of all such proxy statements, additional financial statements, notices and reports or other information as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request from time to time. All financial statements specified in clauses (a) and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company shall send will deliver to each Lender (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(i), 9.03, 9.05 and 9.06 or make available generally to their security holdersreflecting any noncompliance therewith as at the applicable date, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(gii) promptly after the receipt thereof by the Company or any of its Subsidiariesan Officer’s Certificate stating that, 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 knowledge 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 officer, there exists no Default or Event of Default on or if , to the part knowledge of such officer any such Default or Event of Default exists, stating the Companynature thereof, an Officer's Certificate the period of existence thereof, and what action the Company specifying has taken and proposes to take with respect thereto. Together with each delivery of financial statements required by clause (a) above, the Company will deliver to each Lender a written statement of said accountants that, in conducting the audit necessary to the issuance of an opinion on such financial statements, nothing came to their attention that caused them to believe that an Event of Default or Default relating to financial and accounting matters (an “Accounting Event of Default or Default”) had occurred, or, if such accountants shall have obtained knowledge of any such Accounting Event of Default or Default, such statement shall specify the nature and period of existence thereof thereof; provided that such accountants shall not be liable directly or indirectly to any Lender for failure to obtain knowledge of any such Accounting Event of Default or Default, and what action provided further that in issuing such statement, such accountants shall not be required to go beyond those auditing procedures conducted in connection with their issuance of the Company opinion referred to above. Each Lender is taking or proposes authorized to take with respect thereto; deliver a copy of any financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and regulations. Financial statements required to be delivered pursuant to Section 8.02(a)(i) or (2b)(i) or statements and reports required to be delivered pursuant to Section 8.02(c) (to the extent any Indebtedness such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which notice is received by the Administrative Agent that such information has been posted on the Company’s website on the Internet at xxx.xxxxxxxx.xxx, at xxx.xxx/xxxxx/searchdgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge (except in the case of statements of beneficial ownership of securities on Form 3, 4 or 5, which shall be deemed to have been delivered when so posted regardless of whether such notice is received). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the Company documents referred to above, and each Lender shall be solely responsible for requesting delivery to it or any of maintaining its Subsidiaries being declared due and payable before its expressed maturity, or any holder copies 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 Company or such Subsidiary is taking or proposes to take with respect thereto; The Company 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 by any prospective purchaser of Notes designated in writing by the holder thereofdocuments.
Appears in 1 contract
Samples: Credit Agreement (Cox Radio Inc)
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 occurredLenders:
(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 the Company 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 prior year, all Certified by the Chief Financial Officer of the CompanyGAAP;
(bii) if differences between GAAP as at the date of the financial statements referred to in subparagraph (i) and GAAP as at December 31, 1998 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 Company,
(i) SSWG, copies of the comparative consolidated and consolidating balance sheets financial statements of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company 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 PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries 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) 1998 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 Company; 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 Section 10.1, and (y) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of any default by the Company 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 Company 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 Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such periodSections 8.01(l), (m), (n), (o), (p) and describing (q) and reporting any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 Business Plan for the ensuing fiscal year;
(ix) promptly after the same are available Borrowers become aware thereof, written notice of any material change to any Business Plan previously provided to the Lenders, and as soon as reasonably practicable an updated Business Plan;
(x) promptly and in any event within 10 days thereof, copies four Business Days after a Responsible Officer of all such proxy statements, financial statements, notices and reports as the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 Borrowers becomes aware of (1) the existence of any a Default or Event of Default on under this Agreement or a default or event of default under the part Senior Subordinated Note Indenture or any other Indebtedness, a certificate duly executed by an Authorized Officer of the Company, an Officer's Certificate of the Company such Borrower specifying the nature and period of existence thereof and what action the Company is Borrowers have taken, are taking or proposes propose to take with respect thereto; or ;
(2xi) any Indebtedness with reasonable promptness:
(A) written notice of the Company attachment of any Lien other than a Permitted Lien to any of the assets of any Group Entity;
(B) written notice of any actual or probable material litigation or other legal proceedings affecting any of the Group Entities (including any proceeding before an arbitrator, quasi-judicial tribunal or other Governmental Body) involving a potential liability of more than U.S.$1,000,000 (or the equivalent thereof in any other currency), including copies of relevant legal documentation;
(C) written notice of any occurrence, including without limitation any third party claim or liability, of which any Borrower becomes aware which may prevent such Borrower or any of the other Group Entities from performing any of its Subsidiaries being declared due and payable before its expressed maturity, obligations under this Agreement 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 other Credit Facility Documents; and
(or any event whichD) such other information, with notice and/or including financial statements and computations, relating to the lapse of time, shall constitute any such default) under such Indebtedness, an Officer's Certificate performance of the Company describing the nature and status of such matters and what action the Company or such Subsidiary is taking or proposes to take with respect thereto; The Company will keep at its principal executive office a true copy provisions of this Agreement, Agreement and cause the same affairs of the Group Entities as the Lenders may from time to be available for inspection at said office during normal business hours by any holder of Notes or by any prospective purchaser of Notes designated in writing by the holder thereoftime reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Sparkling Spring Water Group LTD)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser, until all each of the Obligations have been indefeasibly paid Lenders (either in full and no Notes are outstanding and the Termination Date has occurred:hard copy or electronically):
(a) as soon as available available, and in any event within 30 days 90 days, after the end of each month, copies fiscal year (i) a copy of the consolidated and consolidating balance sheets annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche or another independent certified public accountant of recognized national standing, that such statements have been prepared in accordance with GAAP, consistently applied, except as may be explained in such opinion, and fairly present in all material respects the financial condition of the end of such month Company and its Subsidiaries on a consolidated basis and the related consolidated results of its and consolidating statements of income for such month their operations as at the dates and for the portion periods indicated and (ii) a copy of the fiscal year ended with the last day of such monthreconciliation sheet, and stating in comparative form the corresponding figures from the prior year, all Certified certified by the Chief Financial Officer a financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;
(b) as soon as available available, and in any event within 45 days 60 days, after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) copies a copy of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries as at the end of such fiscal year quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders’ equity and a consolidated results statement of operations cash flows, all in reasonable detail and cash flows for such fiscal year in conformity with GAAP and that certified by a financial officer of the examination by the Accountants in connection with such consolidated financial statements has Company to have been made prepared in accordance with generally accepted auditing standardsGAAP, consistently applied, except as may be explained in such certificate and (y) except, in the case of such unaudited consolidating financial interim statements, Certified by for year end audit adjustments and the Chief Financial Officer absence of footnotes, and as fairly presenting in all material respects the financial condition of the Company; and
Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a written statement copy of the Accountants (x) reconciliation sheet, certified by the Company, setting forth computations the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in reasonable detail showing whether or not as this paragraph (b) in order to arrive at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such consolidated financial statements they obtained no knowledge of any default by the Company in and its Restricted Subsidiaries;
(c) promptly after the fulfillment filing thereof, copies of any all statements and reports filed with the Securities and Exchange Commission, other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing 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 securities offerings for which registration statements were previously filed and status thereofForms D;
(d) concurrently with promptly, and in any case within five Business Days, after any officer of the financial statements furnished pursuant to subsections (b) and (c) Company obtains knowledge that an Event of this Section 7Default or Default has occurred, an Officer's ’s Certificate specifying the nature 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 existedDefault, the nature and period of existence thereof thereof, and what action the Company has taken, is taking or proposes to take with respect thereto;
(e) concurrently with the financial statements furnished pursuant to subsections (b) taken and (c) of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures from the consolidated budget of the Company and its Subsidiaries for such period), and describing any significant events relating to the Company or its Subsidiaries occurring during such period, together with copies of any financial statements or budget information and any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company 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 the Company shall send or make available generally to their security holders, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(g) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate of the Company specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; and
(e) promptly after request, such additional financial or other information as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request from time to time. All financial statements specified in clauses (2a) any Indebtedness and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company will deliver to each Lender (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(j), 9.03, 9.05 and 9.06 or reflecting any of its Subsidiaries being declared due noncompliance therewith as at the applicable date, and payable before its expressed maturity(ii) an Officer’s Certificate stating that, or any holder to the knowledge of such Indebtedness having officer, there exists no Default or Event of Default or if, to the right to declare knowledge of 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 officer any such default) under such IndebtednessDefault or Event of Default exists, an Officer's Certificate of the Company describing stating the nature and status thereof, the period of such matters existence thereof, and what action the Company or such Subsidiary is taking or has taken and proposes to take with respect thereto; The Company will keep at its principal executive office . Each Lender is authorized to deliver a true copy of this Agreementany financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and regulations. Financial statements required to be delivered pursuant to Section 8.02(a)(i) or (b)(i) or statements and reports required to be delivered pursuant to Section 8.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which notice is received by the Administrative Agent that such information has been posted on the Company’s website on the Internet at xxx.xxxxxxxx.xxx, at xxx.xxx/xxxxx/searchdgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge (except in the case of statements of beneficial ownership of securities on Form 3, 4, or 5 which shall be deemed to have been delivered when so posted regardless of whether such notice is received). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and cause the same each Lender shall be solely responsible for requesting delivery to be available for inspection at said office during normal business hours by any holder it or maintaining its copies of Notes or by any prospective purchaser of Notes designated in writing by the holder thereofsuch documents.
Appears in 1 contract
Samples: Credit Agreement (Cox Radio Inc)
Financial Statements and Information. The Company will furnish Deliver to the Purchaser, until all each of the Obligations have been indefeasibly paid Banks in full and no Notes are outstanding and the Termination Date has occurredduplicate:
(a) as soon as available available, and in any event within 30 days 90 days, after the end of each month, copies fiscal year (i) a copy of the consolidated and consolidating balance sheets annual audited financial statements of the Company and its Subsidiaries for such fiscal year containing a balance sheet, an income statement, a statement of shareholders' equity and a consolidated statement of cash flows, all in reasonable detail, together with the unqualified opinion of Deloitte & Touche LLP or another independent certified public accountant of recognized standing satisfactory to the Banks, that such statements have been prepared in accordance with generally accepted accounting principles, consistently applied, except as may be explained in such opinion, and fairly present the financial condition of the end of such month Company and its Subsidiaries on a consolidated basis and the related consolidated results of its and consolidating statements of income for such month their operations as at the dates and for the portion periods indicated and (ii) a copy of the fiscal year ended with the last day of such monthreconciliation sheet, and stating in comparative form the corresponding figures from the prior year, all Certified certified by the Chief Financial Officer chief financial officer of the Company, setting forth the adjustments required to the consolidated audited financial statements of the Company and its Subsidiaries referred to above in this paragraph (a) in order to arrive at the consolidated financial statements of the Company and its Restricted Subsidiaries;
(b) as soon as available available, and in any event within 45 days 60 days, after the end of each of the first three quarterly accounting period (other than the fourth quarterly accounting period) periods in each fiscal year of the Company,
(i) copies a copy of the consolidated and consolidating balance sheets of the Company, 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 of the Company and its Subsidiaries for such period, all Certified by the Chief Financial Officer of the Company, and
(ii) a written statement of the Chief Financial Officer of the Company 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 Section 10.1;
(c) as soon as available and in any event within 90 days after the end of each fiscal year of the Company,
(i) copies of the audited consolidated and unaudited consolidating balance sheets of the Company, 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 of the Company for such fiscal year, (x) in the case of each of such audited consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP, or other independent public accountants of recognized 47 national standing selected by the Company and 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 the Company and its Subsidiaries as at the end of such fiscal year quarter and for the period then ended, containing a balance sheet, an income statement, a statement of shareholders' equity and a consolidated results statement of operations cash flows, all in reasonable detail and cash flows for such fiscal year in conformity with GAAP and that certified by a financial officer of the examination by the Accountants in connection with such consolidated financial statements has Company to have been made prepared in accordance with generally accepted auditing standardsGAAP, consistently applied (subject to year end audit adjustments and except for the absence of footnotes), except as may be explained in such certificate, and (y) in as fairly presenting the case of such unaudited consolidating financial statements, Certified by the Chief Financial Officer condition of the Company; and
Company and its Subsidiaries on a consolidated basis and the results of its and their operations as at the dates and for the periods indicated and (ii) a written statement copy of the Accountants (x) reconciliation sheet, certified by the chief financial officer of the Company, setting forth computations the adjustments required to the consolidated quarterly financial statements of the Company and its Subsidiaries referred to above in reasonable detail showing whether or not as this paragraph (b) in order to arrive at the end of such fiscal year there existed any Default or Event of Default resulting from a breach or violation of Section 10.1, and (y) stating that in making the examination necessary for their report on such consolidated financial statements they obtained no knowledge of any default by the Company in and its Restricted Subsidiaries;
(c) promptly after the fulfillment filing thereof, copies of any all statements and reports filed with the Securities and Exchange Commission other than Form S-8 registration statements and other reports relating to employee benefit plans, supplements to registration statements relating solely to the pricing 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 securities offerings for which registration statements were previously filed and status thereofdelivered and Forms D;
(d) concurrently with promptly after any officer of the financial statements furnished pursuant to subsections (b) and (c) Company obtains knowledge of this Section 7an Event of Default or Default, an Officer's Certificate specifying the nature 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 existedDefault, the nature and period of existence thereof thereof, and what action the Company has taken, is taking or taken and proposes to take with respect thereto;
(e) concurrently with promptly upon the financial statements furnished pursuant to subsections (b) and (c) Company's or any Subsidiary's receipt thereof, copies of this Section 7, a brief management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries, 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 Company and its Subsidiaries as of the end of and for the comparable period in the prior fiscal year and the corresponding figures all notices received from the consolidated budget of FCC regarding the Company and its Subsidiaries for such period)termination, and describing any significant events relating to the Company cancellation, revocation or its Subsidiaries occurring during such period, together with copies taking of any financial statements or budget information and other materially adverse action with respect to any projections and any management discussion and analysis of the financial condition and results of operations of the Company and its Subsidiaries provided by the Company during such period;Material FCC Licenses; and
(f) promptly after the same are available and in any event within 10 days thereofrequest, copies of all such proxy statements, additional financial statements, notices and reports or other information as the Administrative Agent or any Bank acting through the Administrative Agent may reasonably request from time to time. All financial statements specified in clauses (a) and (b) above shall be furnished with comparative consolidated figures for the corresponding period in the preceding year. Together with each delivery of financial statements required by clauses (a) and (b) above, the Company shall send will deliver to each Bank (i) such schedules, computations and other information as may be required to demonstrate that the Company is in compliance with its covenants in Sections 8.01, 9.01(f), 9.02 and 9.06 or make available generally to their security holdersreflecting any non-compliance therewith as at the applicable date, and copies of all regular and periodic reports and of all registration statements which the Company or any of its Subsidiaries may file with the SEC or with any securities exchange;
(gii) promptly after the receipt thereof by the Company or any of its Subsidiaries, 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 the Company, an Officer's Certificate stating that there exists no Event of Default or, to the knowledge of such officer, any Default, or, if any such Event of Default or, to the knowledge of such officer, any Default exists, stating the nature thereof, the period of existence thereof, and what action the Company specifying has taken and proposes to take with respect thereto. Together with each delivery of financial statements required by clause (a) above, the Company will deliver to each Bank a written statement of said accountants that, in making the audit necessary to the certification of such financial statements, they have obtained no knowledge of any Event of Default or Default, or, if such accountants shall have obtained knowledge of any Event of Default or Default, they shall specify the nature and period of existence thereof and what action the Company is taking in such statement; provided that such accountants shall not be liable directly or proposes indirectly to take with respect thereto; or (2) any Indebtedness of the Company or any of its Subsidiaries being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right Bank for failure to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence obtain knowledge of any default (Event of 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 Company or such Subsidiary Default. Each Bank is taking or proposes authorized to take with respect thereto; The Company will keep at its principal executive office deliver a true copy of this Agreementany financial statement delivered to it to any regulatory body having jurisdiction over it and to any other Person as may be required by applicable law, rules and cause the same to be available for inspection at said office during normal business hours by any holder of Notes or by any prospective purchaser of Notes designated in writing by the holder thereofregulations.
Appears in 1 contract
Samples: Credit Agreement (Cox Radio Inc)
