Information Reporting Requirements. The Company shall furnish to the Purchaser: (a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a)), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year, and related consolidated statements of operations, stockholders’ equity and cash flows of the Company and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company and acceptable to the Purchaser (which opinion shall provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries or otherwise qualified in any respect (other than, with respect to any Fiscal Year ending on or prior to September 30, 2002 only, as to the re-characterization of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end of such Fiscal Year, copies of the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (a); (b) Within two (2) days after it is prepared, and in no event later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “Monthly Reporting Package”), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following: (i) an income statement for such month, with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year; (ii) a year-to-date income statement for such month, with comparative information for the current year-to-date budget and the same year-to-date month during the immediately preceding Fiscal Year; (iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year; (iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current year-to-date budget and the same year-to-date period during the immediately preceding Fiscal Year; (v) a balance sheet as at the end of such month, with comparative information as at the end of the same month during the immediately preceding Fiscal Year; and (vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections; (A) On Wednesday of each week (which may be furnished via telecopier), a package of information (the “Weekly Reporting Package”), including: (i) the weekly internal sales report of the Company and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries as of the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such additional information as may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser; (d) At least thirty (30) days prior to the beginning of each Fiscal Year, a copy of the Company’s internal financial projections for such Fiscal Year (the “Annual Financial Projections”), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “payback” analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior management; (e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 with respect to each calendar month which ends on the last day of any Fiscal Quarter, a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser (a “Compliance Certificate”), signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, certifying that each of them has reviewed this Agreement and the other Investment Documents and such financial statements (including the financial condition and results of operations) of the Company and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed in such Compliance Certificate; (f) Promptly after submission to any Governmental Authority (and in any event not later than five (5) days thereafter), all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authority; (g) Promptly (and in any event not later than five (5) days) after the issuance of any Compliance Report, or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s)); (h) Promptly (and in any event not later than one (1) Business Day) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default or a “Default” or “Event of Default” as defined in the Senior Credit Documents; (ii) the commencement of any litigation against the Company or any of its Subsidiaries involving an amount in excess of $100,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; or (iii) any event, occurrence or development which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item or matter and what action the Company or any other Person is taking or proposes to take to cure the same; and (i) Promptly upon request (and in any event not later than five (5) days thereafter), such other information concerning the business, operations, condition (financial or otherwise) or affairs of the Company or any of its Subsidiaries or other Affiliates as the Purchaser may from time to time request (provided that if such information is in the possession of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Overhill Farms Inc), Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Information Reporting Requirements. The Company Issuers shall furnish to the Purchaser:
(a) As soon as available, and in no event later than ninety (90) Within 105 days after the end of each Fiscal Year Year, (as such number of days may be extended as provided in the last sentence of this clause (a)), a i) consolidated balance sheet sheets and consolidated income statements showing the financial condition of the Company Parent and its Subsidiaries subsidiaries as of the end close of such Fiscal Year and the results of their operations during such year, (ii) a consolidated statement of shareholders' equity and a consolidated statement of cash flows, as of the close of such Fiscal Year, comparing such financial condition and related consolidated statements results of operations, stockholders’ equity operations to such financial condition and cash flows results of operations for the Company and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for comparable period during the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied the foregoing financial statements to be audited by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company and acceptable to the Purchaser Senior Administrative Agent (which opinion shall provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion report shall not be qualified or limited because of a restricted or limited examination by such accountant of contain any material portion of the records of the Company or any of its Subsidiaries or otherwise qualified in any respect (other than, qualification except with respect to any Fiscal Year ending on or prior new accounting principles mandated by the Financial Accounting Standards Board) and to September 30, 2002 only, as be in form and substance acceptable to the re-characterization Senior Administrative Agent, (iii) consolidating income statements by market place as of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end close of such Fiscal Year, copies of the draft audited financial statements, including the notes thereto, required such consolidating income statements to be furnished in form and substance acceptable to the Purchaser under this clause (a);
(b) Within two (2) days after it is prepared, Senior Agents and in no event later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “Monthly Reporting Package”), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such month, with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such month, with comparative information for the current year-to-date budget and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date consolidating balance sheets, income statements and statements of cash flow statement for flows showing the financial condition of Parent, GDSC and DCA as of the close of such month (including specific line items for any Tax Sharing Cash Payments)Fiscal Year and the results of such Person's operations during such Fiscal Year, with comparative information comparing such financial condition and results of operations to such financial condition and results of operations for the current year-to-date budget and the same year-to-date comparable period during the immediately preceding Fiscal Year, in the case of clauses (iii) and (iv), prepared and certified by the Chief Financial Officers of the Issuers as having been prepared in accordance with GAAP and, with respect to clause (iv), as presenting fairly the financial condition and results of operations of the applicable Person;
(vb) a balance sheet as at Within 45 days after the end of such montheach Fiscal Quarter of Parent, with comparative information as at the end of the same month during the immediately preceding Fiscal Year; and
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections;
(A) On Wednesday of each week (which may be furnished via telecopier), a package of information (the “Weekly Reporting Package”), including: (i) unaudited consolidated balance sheets and consolidated income statements showing the weekly internal sales report financial condition and results of the Company operations of Parent and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries subsidiaries as of the end of each such prior week; Fiscal Quarter, (ii) a consolidated statement of shareholders' equity, (iii) the 90-Day Receivables as a consolidated statement of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined cash flows, in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis each case for the twelve (12) week Fiscal Quarter just ended and for the period commencing at the end of the prior week; immediately preceding Fiscal Year and ending with the last day of such Fiscal Quarter, and comparing such financial condition and results of operations to the projections for the applicable period provided under clause (viiig) a written “new business” report updating below and to the Company’s business generation activities results for the comparable period during the prior weekimmediately preceding Fiscal Year, (iv) consolidating income statements by market place as of the end of each such Fiscal Quarter, such consolidating income statements to be in form and substance acceptable to the Senior Agents and shall reconcile with the consolidated income statements delivered pursuant to clause (i) of this clause (b) and (v) "same practice" performance comparative information in form and substance satisfactory to the Purchaser; Senior Administrative Agent;
(ixc) Within (x) 30 days after the end of each month other than for any month coinciding with the end of a Fiscal Quarter and (y) within 45 days after the end of each month coinciding with the end of a Fiscal Quarter, (i) unaudited consolidated balance sheets and income statements showing the financial condition and results of operations of Parent and its subsidiaries as of the end of each such month, (ii) a written “yield report” consolidated statement of shareholders' equity, (iii) a consolidated statement of cash flows, in each case for the month just ended and for the period commencing at the end of the Companyimmediately preceding Fiscal Year and ending with the last day of such month, and comparing such financial condition and results of operations to the projections for the applicable period provided under clause (g) below and to the results for the comparable period during the immediately preceding Fiscal Year and (iv) income statements by market place as of the end of each such month, such financial statements to be in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to Senior Agents, in each First Amendment Business Plan; case prepared and (xi) such additional information as may be mutually agreed upon certified by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end Chief Financial Officer of the immediately preceding Business Day Issuers as presenting fairly the financial condition and results of operations of Parent and its subsidiaries and as having been prepared in all accountsaccordance with GAAP, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory each case subject to the Purchaser; absence of footnotes and (ii) such additional information as may be requested by the Purchasernormal year-end audit adjustments;
(d) At least thirty Promptly after the same become publicly available (30but not later than five (5) days prior thereafter), copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by Parent or any of its subsidiaries with the Commission pursuant to the beginning of each Fiscal Year, a copy requirements of the Company’s internal financial projections for such Fiscal Year (Securities Act or the “Annual Financial Projections”), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “payback” analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior managementExchange Act;
(e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause clauses (a) of this Section 8.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 with respect to each calendar month which ends on the last day of any Fiscal QuarterSECTION 9.3, (i) a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser of EXHIBIT C (a “Compliance Certificate”"COMPLIANCE CERTIFICATE"), signed executed by the President and Chief Executive Officer and the Chief Financial Officer of each of the CompanyIssuers and Parent, certifying that each that, to the best of them his or her knowledge, no Default or Event of Default has reviewed this Agreement and occurred (including (A) calculations demonstrating compliance, as of the other Investment Documents and such dates of the financial statements (including being delivered, with the financial condition covenants set forth in SECTION 10.16 and results (B) appropriate schedules as may be requested by the Purchaser in support of operationssuch calculations) and, if such a Default or Event of Default has occurred, specifying the Company nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (ii) an update to the organizational chart for Parent and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to subsidiaries, evidencing any acquisitions made during the matters required to be addressed in such Compliance Certificateapplicable period;
(f) Promptly Concurrently with any delivery under clause (a) above, any related management letters prepared by the independent public accountants who reported on the financial statements delivered thereunder, with respect to the internal audit and financial controls of Parent or any of its subsidiaries;
(g) Within 30 days after submission the beginning of each Fiscal Year, a summary of business plans and financial operation projections (including, without limitation, with respect to any Governmental Authority Capital Expenditures) for the Issuers and their respective subsidiaries for such Fiscal Year (including monthly balance sheets, statements of income and of cash flow) and annual projections through the final maturity date of the Note prepared by management and in any event form, substance and detail (including, without limitation, principal assumptions) satisfactory to the Senior Administrative Agent;
(h) As soon as practicable (but not later than five (5) days thereafterafter availability), copies of all reports, forms, filings, loan documents and financial information furnished submitted to such or received from any Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental AuthorityAuthorities and/or Parent's shareholders;
(gi) Promptly As soon as possible (and in any event within two (2) Business Days) after any Company Party or Subsidiary obtains knowledge thereof, written notice of the occurrence of any event, act, development or condition which constitutes a Default or Event of Default or any "default" or "event of default" under the terms of any Other Debt Documents (including, without limitation, the Senior Credit Documents), specifying the nature and extent thereof and the action (if any) which is proposed to be taken with respect thereto;
(j) Within thirty (30) days of the closing of any Permitted Acquisition, copies of all documents related thereto and which were not previously required to be delivered to the Purchaser pursuant to the terms of this Agreement;
(k) Promptly (but not later than three (3) days thereafter), written notice of:
(i) the issuance by any Governmental Authority of any injunction, order, decision or other restraint invalidating, or having the effect of invalidating, any provision of this Agreement, the Note or the other Investment Documents, or the filing or commencement of any action, suit or other proceeding seeking any such injunction, order, decision or other restraint;
(ii) the filing or commencement of any action, suit or other proceeding against Parent or any of its subsidiaries or, to the extent known by an Executive Officer of any Issuer, against any Affiliated Dental Practice, whether at law or in equity or by or before any Governmental Authority, (i) which is material and is brought by or on behalf of any Governmental Authority, or in which injunctive or other equitable relief is sought or (ii) as to which it is probable (within the meaning of Statement of Financial Accounting Standards No. 5) that there will be an adverse determination and which, if adversely determined, would (A) reasonably be expected to result in liability of one or more Issuers or a subsidiary thereof or an Affiliated Dental Practice in an aggregate amount of $200,000 or more, not reimbursable by insurance or (B) materially impair the right of Parent, any Issuer or a subsidiary thereof to perform its obligations under this Agreement, the Note or any other Investment Document to which it is a party; and
(iii) any occurrence or development in the business or affairs of Parent or any of its subsidiaries which has had or which is reasonably likely to have a Material Adverse Effect;
(l) Within forty-five (545) daysdays after the end of each Fiscal Quarter of Parent:
(i) a detailed analysis of loans and advances made to Affiliated Dental Practices during such Fiscal Quarter, by Affiliated Dental Practice, including the total amount of loans and advances to Affiliated Dental Practices outstanding as at the end of such Fiscal Quarter;
(ii) a "same store sales" analysis in reasonable detail, for each Affiliated Dental Practice, as of the end of such Fiscal Quarter; and
(iii) such additional information regarding the financial performance (including, without limitation, revenues, expenses and capital expenditures) of the Affiliated Dental Practices as the Issuers and the Purchaser may mutually agree;
(m) Promptly (but not later than three (3) Business Days) after the issuance receipt of any Compliance Governmental Report, or series of Compliance Governmental Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Governmental Report(s) (or written summaries of any substantially similar oral determination(s)Governmental Report);
(hn) Promptly after the release thereof (and in any event not later than one (1) Business DayDays thereafter), copies of all press releases;
(o) Promptly after an officer of the any Company obtains Party or Subsidiary has knowledge or becomes aware thereof or (and in any Executive Officer of the Company should have obtained knowledge thereofevent not later than three (3) Business Days thereafter), written notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default Loss with respect to the property or a “Default” or “Event of Default” as defined in the Senior Credit Documents; (ii) the commencement assets of any litigation against Company Party or Subsidiary aggregating $100,000 or more;
(p) Prompt written notice, in reasonable detail, of any proposed creation, incorporation or acquisition of any Company Party or Subsidiary in connection with any Permitted Acquisition which involves a purchase price of $5,000,000 or more;
(q) Prompt written notice of all actions, suits and proceedings before any Governmental Authority or arbitrator pending, or to the best of the Company Parties' knowledge, threatened against or affecting any of its Subsidiaries involving Company Party or Subsidiary which (A) if adversely determined would involve an amount in excess aggregate liability of $100,000 (or any investigation its equivalent in another currency) or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; more, or (iiiB) any event, occurrence or development which could otherwise may have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item or matter and what action the Company or any other Person is taking or proposes to take to cure the same; and;
(ir) Within ten (10) days of the date thereof, notice of any material change in accounting policies or financial reporting practices by any Company Party or Subsidiary;
(s) Promptly after the occurrence thereof (and in any event not later than three (3) Business Days thereafter), notice of any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving any Company Party or Subsidiary;
(t) Promptly upon request (and in any event not later than five three (53) days Business Days thereafter), such other notices and other information (whether or not in the possession of third parties) concerning the business, operations, condition (financial or otherwise) ), affairs or affairs prospects of the Company or any of Parent and its Subsidiaries or other and Affiliates as the Purchaser may from time to time request (provided that if such information is in the possession request, including, without limitation, written notices of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser)any issuances or sales of Parent Common Stock.
Appears in 1 contract
Information Reporting Requirements. The Company Issuers shall furnish to the Purchaser:
(a) As soon as available, and in no event later than ninety (90) Within 105 days after the end of each Fiscal Year Year, (as such number of days may be extended as provided in the last sentence of this clause (a)), a i) consolidated balance sheet sheets and consolidated income statements showing the financial condition of the Company Parent and its Subsidiaries subsidiaries as of the end close of such Fiscal Year and the results of their operations during such year, (ii) a consolidated statement of shareholders' equity and a consolidated statement of cash flows, as of the close of such Fiscal Year, comparing such financial condition and related consolidated statements results of operations, stockholders’ equity operations to such financial condition and cash flows results of operations for the Company and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for comparable period during the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied the foregoing financial statements to be audited by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company and acceptable to the Purchaser Senior Administrative Agent (which opinion shall provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion report shall not be qualified or limited because of a restricted or limited examination by such accountant of contain any material portion of the records of the Company or any of its Subsidiaries or otherwise qualified in any respect (other than, qualification except with respect to any Fiscal Year ending on or prior new accounting principles mandated by the Financial Accounting Standards Board) and to September 30, 2002 only, as be in form and substance acceptable to the re-characterization Senior Administrative Agent, (iii) consolidating income statements by market place as of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end close of such Fiscal Year, copies of the draft audited financial statements, including the notes thereto, required such consolidating income statements to be furnished in form and substance acceptable to the Purchaser under this clause (a);
(b) Within two (2) days after it is prepared, Senior Agents and in no event later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “Monthly Reporting Package”), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such month, with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such month, with comparative information for the current year-to-date budget and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date consolidating balance sheets, income statements and statements of cash flow statement for flows showing the financial condition of Parent, GDSC and DCA as of the close of such month (including specific line items for any Tax Sharing Cash Payments)Fiscal Year and the results of such Person's operations during such Fiscal Year, with comparative information comparing such financial condition and results of operations to such financial condition and results of operations for the current year-to-date budget and the same year-to-date comparable period during the immediately preceding Fiscal Year, in the case of clauses (iii) and (iv), prepared and certified by the Chief Financial Officers of the Issuers as having been prepared in accordance with GAAP and, with respect to clause (iv), as presenting fairly the financial condition and results of operations of the applicable Person;
(vb) a balance sheet as at Within 45 days after the end of such montheach Fiscal Quarter of Parent, with comparative information as at the end of the same month during the immediately preceding Fiscal Year; and
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections;
(A) On Wednesday of each week (which may be furnished via telecopier), a package of information (the “Weekly Reporting Package”), including: (i) unaudited consolidated balance sheets and consolidated income statements showing the weekly internal sales report financial condition and results of the Company operations of Parent and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries subsidiaries as of the end of each such prior week; Fiscal Quarter, (ii) a consolidated statement of shareholders' equity, (iii) the 90-Day Receivables as a consolidated statement of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined cash flows, in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis each case for the twelve (12) week Fiscal Quarter just ended and for the period commencing at the end of the prior week; immediately preceding Fiscal Year and ending with the last day of such Fiscal Quarter, and comparing such financial condition and results of operations to the projections for the applicable period provided under clause (viiig) a written “new business” report updating below and to the Company’s business generation activities results for the comparable period during the prior weekimmediately preceding Fiscal Year, (iv) consolidating income statements by market place as of the end of each such Fiscal Quarter, such consolidating income statements to be in form and substance acceptable to the Senior Agents and shall reconcile with the consolidated income statements delivered pursuant to clause (i) of this clause (b) and (v) "same practice" performance comparative information in form and substance satisfactory to the Purchaser; Senior Administrative Agent;
(ixc) Within (x) 30 days after the end of each month other than for any month coinciding with the end of a Fiscal Quarter and (y) within 45 days after the end of each month coinciding with the end of a Fiscal Quarter, (i) unaudited consolidated balance sheets and income statements showing the financial condition and results of operations of Parent and its subsidiaries as of the end of each such month, (ii) a written “yield report” consolidated statement of shareholders' equity, (iii) a consolidated statement of cash flows, in each case for the month just ended and for the period commencing at the end of the Companyimmediately preceding Fiscal Year and ending with the last day of such month, and comparing such financial condition and results of operations to the projections for the applicable period provided under clause (g) below and to the results for the comparable period during the immediately preceding Fiscal Year and (iv) income statements by market place as of the end of each such month, such financial statements to be in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to Senior Agents, in each First Amendment Business Plan; case prepared and (xi) such additional information as may be mutually agreed upon certified by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end Chief Financial Officer of the immediately preceding Business Day Issuers as presenting fairly the financial condition and results of operations of Parent and its subsidiaries and as having been prepared in all accountsaccordance with GAAP, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory each case subject to the Purchaser; absence of footnotes and (ii) such additional information as may be requested by the Purchasernormal year-end audit adjustments;
(d) At least thirty Promptly after the same become publicly available (30but not later than five (5) days prior thereafter), copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by Parent or any of its subsidiaries with the Commission pursuant to the beginning of each Fiscal Year, a copy requirements of the Company’s internal financial projections for such Fiscal Year (Securities Act or the “Annual Financial Projections”), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “payback” analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior managementExchange Act;
(e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause clauses (a) of this Section 8.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 with respect to each calendar month which ends on the last day of any Fiscal QuarterSECTION 9.3, (i) a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser of EXHIBIT C (a “Compliance Certificate”"COMPLIANCE CERTIFICATE"), signed executed by the President and Chief Executive Officer and the Chief Financial Officer of each of the CompanyIssuers and Parent, certifying that each that, to the best of them his or her knowledge, no Default or Event of Default has reviewed this Agreement and occurred (including (A) calculations demonstrating compliance, as of the other Investment Documents and such dates of the financial statements (including being delivered, with the financial condition covenants set forth in SECTION 10.16 and results (B) appropriate schedules as may be requested by the Purchaser in support of operationssuch calculations) and, if such a Default or Event of Default has occurred, specifying the Company nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (ii) an update to the organizational chart for Parent and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to subsidiaries, evidencing any acquisitions made during the matters required to be addressed in such Compliance Certificateapplicable period;
(f) Promptly Concurrently with any delivery under clause (a) above, any related management letters prepared by the independent public accountants who reported on the financial statements delivered thereunder, with respect to the internal audit and financial controls of Parent or any of its subsidiaries;
(g) Within 30 days after submission the beginning of each Fiscal Year, a summary of business plans and financial operation projections (including, without limitation, with respect to any Governmental Authority Capital Expenditures) for the Issuers and their respective subsidiaries for such Fiscal Year (including monthly balance sheets, statements of income and of cash flow) and annual projections through the final maturity date of the Note prepared by management and in any event form, substance and detail (including, without limitation, principal assumptions) satisfactory to the Senior Administrative Agent;
(h) As soon as practicable (but not later than five (5) days thereafterafter availability), copies of all reports, forms, filings, loan documents and financial information furnished submitted to such or received from any Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental AuthorityAuthorities and/or Parent's shareholders;
(gi) Promptly As soon as possible (and in any event within two (2) Business Days) after any Company Party or Subsidiary obtains knowledge thereof, written notice of the occurrence of any event, act, development or condition which constitutes a Default or Event of Default or any "default" or "event of default" under the terms of any Other Debt Documents (including, without limitation, the Senior Credit Documents), specifying the nature and extent thereof and the action (if any) which is proposed to be taken with respect thereto;
(j) Within thirty (30) days of the closing of any Permitted Acquisition, copies of all documents related thereto and which were not previously required to be delivered to the Purchaser pursuant to the terms of this Agreement;
(k) Promptly (but not later than three (3) days thereafter), written notice of:
(i) the issuance by any Governmental Authority of any injunction, order, decision or other restraint invalidating, or having the effect of invalidating, any provision of this Agreement, the Note or the other Investment Documents, or the filing or commencement of any action, suit or other proceeding seeking any such injunction, order, decision or other restraint;
(ii) the filing or commencement of any action, suit or other proceeding against Parent or any of its subsidiaries or, to the extent known by an Executive Officer of any Issuer, against any Affiliated Dental Practice, whether at law or in equity or by or before any Governmental Authority, (i) which is material and is brought by or on behalf of any Governmental Authority, or in which injunctive or other equitable relief is sought or (ii) as to which it is probable (within the meaning of Statement of Financial Accounting Standards No. 5) that there will be an adverse determination and which, if adversely determined, would (A) reasonably be expected to result in liability of one or more Issuers or a subsidiary thereof or an Affiliated Dental Practice in an aggregate amount of $200,000 or more, not reimbursable by insurance or (B) materially impair the right of Parent, any Issuer or a subsidiary thereof to perform its obligations under this Agreement, the Note or any other Investment Document to which it is a party; and
(iii) any occurrence or development in the business or affairs of Parent or any of its subsidiaries which has had or which is reasonably likely to have a Material Adverse Effect;
(l) Within forty-five (545) daysdays after the end of each Fiscal Quarter of Parent:
(i) a detailed analysis of loans and advances made to Affiliated Dental Practices during such Fiscal Quarter, by Affiliated Dental Practice, including the total amount of loans and advances to Affiliated Dental Practices outstanding as at the end of such Fiscal Quarter;
(ii) a "same store sales" analysis in reasonable detail, for each Affiliated Dental Practice, as of the end of such Fiscal such Fiscal Quarter; and
(iii) such additional information regarding the financial performance (including, without limitation, revenues, expenses and capital expenditures) of the Affiliated Dental Practices as the Issuers and the Purchaser may mutually agree;
(m) Promptly (but not later than three (3) Business Days) after the issuance receipt of any Compliance Governmental Report, or series of Compliance Governmental Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Governmental Report(s) (or written summaries of any substantially similar oral determination(s)Governmental Report);
(hn) Promptly after the release thereof (and in any event not later than one (1) Business DayDays thereafter), copies of all press releases;
(o) Promptly after an officer of the any Company obtains Party or Subsidiary has knowledge or becomes aware thereof or (and in any Executive Officer of the Company should have obtained knowledge thereofevent not later than three (3) Business Days thereafter), written notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default Loss with respect to the property or a “Default” or “Event of Default” as defined in the Senior Credit Documents; (ii) the commencement assets of any litigation against Company Party or Subsidiary aggregating $100,000 or more;
(p) Prompt written notice, in reasonable detail, of any proposed creation, incorporation or acquisition of any Company Party or Subsidiary in connection with any Permitted Acquisition which involves a purchase price of $5,000,000 or more;
(q) Prompt written notice of all actions, suits and proceedings before any Governmental Authority or arbitrator pending, or to the best of the Company Parties' knowledge, threatened against or affecting any of its Subsidiaries involving Company Party or Subsidiary which (A) if adversely determined would involve an amount in excess aggregate liability of $100,000 (or any investigation its equivalent in another currency) or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; more, or (iiiB) any event, occurrence or development which could otherwise may have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item or matter and what action the Company or any other Person is taking or proposes to take to cure the same; and;
(ir) Within ten (10) days of the date thereof, notice of any material change in accounting policies or financial reporting practices by any Company Party or Subsidiary;
(s) Promptly after the occurrence thereof (and in any event not later than three (3) Business Days thereafter), notice of any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving any Company Party or Subsidiary;
(t) Promptly upon request (and in any event not later than five three (53) days Business Days thereafter), such other notices and other information (whether or not in the possession of third parties) concerning the business, operations, condition (financial or otherwise) ), affairs or affairs prospects of the Company or any of Parent and its Subsidiaries or other and Affiliates as the Purchaser may from time to time request (provided that if such information is in the possession request, including, without limitation, written notices of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser)any issuances or sales of Parent Common Stock.
Appears in 1 contract
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Information Reporting Requirements. The Company Companies shall furnish to the PurchaserPurchaser the following:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a))Year, on a consolidated Consolidated and Consolidating basis, balance sheet sheets of the Company Parent and its Subsidiaries as of the end of such Fiscal Year, and, on a Consolidated and Consolidating basis, related consolidated statements of operations, stockholdersshareholders’ equity and cash flows of the Company Parent and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by (i) a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized national standing selected by the Company and mutually acceptable to Purchaser and the Purchaser Companies (which opinion shall (A) provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall GAAP (B) not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries as to “going concern” or otherwise qualified or limited, in scope or in any other respect and (other thanC) state that such accounting firm has obtained no knowledge that a Default or Event of Default has occurred and is continuing, with respect to any Fiscal Year ending on or prior to September 30if, 2002 onlyin the opinion of such accounting firm, a Default or Event of Default has occurred and in continuing, a statement as to the re-characterization of the TreeCon Accounts Receivable as nature thereof), and (ii) a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers schedule in a form acceptable to the Purchaser of the computations used by such accountants in draft formdetermining, not later than ninety (90) days after as of the end of such Fiscal Year, copies of compliance with the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (a)covenants contained in Section 10.15;
(b) Within two (2) days after it is prepared, and in no event Not later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “Monthly Reporting Package”), all in reasonable detail and prepared in accordance with GAAPdetail, consisting of at least the following:
(i) an income statement for such monthmonth on a Consolidated and Consolidating Basis for the Parent and its Subsidiaries, with comparative information for from the current monthly budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such monthmonth on a Consolidated and Consolidating Basis for the Parent and its Subsidiaries, with comparative information for from the current year-to-date budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for from the current monthly budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for from the current year-to-date budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such monthmonth on a Consolidated and Consolidating Basis for the Parent and its Subsidiaries, with comparative information from the Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and as at the end of the same month during the immediately preceding Fiscal Year; and;
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company Parties that need to be achieved in order for the Company Parties to meet its their financial projections, including, without limitation, the Average Billable Headcount, receivable aging and payables aging;
(Avii) On Wednesday a schedule in a form acceptable to the Purchaser of the computations used by the Company Parties in determining compliance with the covenants contained in Section 10.15;
(viii) monthly detail supporting the unbilled accounts receivable balances and the bxxxxxxx in excess of cost;
(ix) a schedule of detailed information regarding new and terminated Material Contracts with customers;
(x) any additional financial information so that the Purchaser may calculate compliance with the covenants contained in Section 10.15; and
(xi) a progress report on the establishment by the Company Parties of an upgraded financial reporting system to account for non-standard contracts and other manual transactions;
(c) As soon as available and in any event within three (3) Business Days after the end of each week (which may be furnished via telecopierending on Sunday), a package of information weekly reporting package, as determined by Purchaser, for such week (the “Weekly Reporting PackageReport”), including: (i) the weekly internal sales report of the Company and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries as of the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such additional information as may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser;
(d) As soon as available (and in any event not later than the date the Weekly Report is due) after the issuance of any Governmental Report, or series of Governmental Reports, a copy (or copies) of such Governmental Report(s) (or written summaries of any substantially similar oral reports(s));
(e) At least thirty fifteen (3015) days prior to the beginning of each Fiscal Year, a copy of the Company’s internal financial projections of the Company Parties for such Fiscal Year (the “Annual Financial Projections”), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “payback” analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company Parties to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior managementExxxxx X. Xxxxx;
(ef) Simultaneously At the Final Closing, and simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 9.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 9.3 with respect to each calendar month which ends on the last day of any Fiscal Quartermonth, a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser attached as Exhibit E (a “Compliance Certificate”), signed on behalf of the Parent and the Company Parties by the Parent’s President and Chief Executive Officer and the or its Chief Financial Officer of the CompanyOfficer, certifying that each of them has reviewed this Agreement and the other Investment Documents and such the financial statements (including the financial condition and results of operations) of the Company Parent and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed set forth in such Compliance Certificate;
(fg) Promptly after the same becomes publicly available (but not later than the date the Weekly Report is due), copies of any Company SEC Documents as shall be filed by any Company Party pursuant to the requirements of the Securities Act or the Exchange Act;
(h) Promptly after submission to any Governmental Authority (and in any event but not later than five (5) days thereafterthe date the Weekly Report is due), all documents and information furnished to such Governmental Authority in connection with any investigation of any Company Party not in the Company or any ordinary course of its Subsidiaries other than routine inquiries by such Governmental Authoritybusiness;
(gi) Promptly As soon as possible after any Company Party obtains knowledge thereof (and in any event but not later than five (5) days) after the issuance of any Compliance Reportdate the Weekly Report is due), or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one (1) Business Day) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act act, development or condition which constitutes a Default or Event of Default or a any “Defaultdefault” or “Event event of Defaultdefault” as defined in under the Senior Credit terms of any Other Debt Documents; (ii) the commencement receipt of any litigation against the Company notice of default or termination under or related to any of its Subsidiaries involving an amount in excess of $100,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its SubsidiariesMaterial Contract; or (iii) any event, occurrence other event or development which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item the event, act, condition, Default, Event of Default, default, event of default, litigation or matter investigation or other proceeding and what action the Company Party or any other Person is taking or proposes to take to cure the same; and;
(j) As soon as available and in any event within thirty (30) calendar days after the end of each Fiscal Year, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Company Party and containing such additional information as the Purchaser may reasonably specify;
(k) Promptly upon (and in any event not later than the date the Weekly Report is due): (i) receipt thereof, copies of all reports submitted to the Company Parties by their independent certified public accountants in connection with each annual, interim or special audit examination of any Company Party made by such accountants, including the “management letter” submitted by such accountants to any Company Party in connection with their annual audit and (ii) delivery thereof to the Bank Agent, copies of all notices, reports, compliance certificates and financial information delivered to the Bank Agent by or on behalf of any Company Party;
(l) Promptly upon request (and in any event not later than five (5) days thereafterthe date the Weekly Report is due), such other notices and other information (whether or not in the possession of third parties) concerning the business, operations, condition (financial or otherwise) ), affairs or affairs prospects of the any Company or any of its Subsidiaries or other Affiliates Party as the Purchaser may from time to time request request, including written notices of any issuances or sales of Capital Stock of any Company Party;
(provided m) Prior to release, copies of all press releases that if such information mention the Purchaser;
(n) Promptly after any Company Party has knowledge or becomes aware thereof (and in any event not later than the date the Weekly Report is due), written notice of the occurrence of any Event of Loss with respect to the property or assets of any Company Party aggregating $100,000 or more;
(o) Prompt (but in any event not later than the possession date the Weekly Report is due) written notice, in reasonable detail, of any proposed creation, incorporation or acquisition of a third partySubsidiary of any Company Party;
(p) Prompt (but in any event not later than the date the Weekly Report is due) written notice of all actions, suits and proceedings before any Governmental Authority or arbitrator pending or threatened against or affecting any Company Party which (A) if adversely determined would involve an aggregate liability of $100,000 (or its equivalent in another currency) or more, or (B) could have a Material Adverse Effect;
(q) The reports and notices as required by the Collateral Documents;
(r) Not later than the date the Weekly Report is due, written notice of any material change in accounting policies or financial reporting practices by any Company shall take such actions as may Party;
(s) Promptly after any Company Party becomes aware thereof (and in any event not later than the date the Weekly Report is due), written notice of any material labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving any Company Party;
(t) Promptly upon the establishment of new accounts of the type set forth in Section 3.38 (Depository and Other Accounts) (and in any event not later than the date on which the next Weekly Report is to be necessary to obtain such information from such third party and shall furnish it immediately upon receipt delivered to the Purchaser), written notice thereof, including the account number, location and other relevant details
(u) Prompt written notice of any other condition or event which has resulted, or that would reasonably be expected to result, in a Material Adverse Effect;
(v) After the date on which the Weekly Report is no longer required to be delivered pursuant to the terms of this Agreement, any of the foregoing notices, reports or documents that are to be delivered to the Purchaser not later than the date on which the next such Weekly Report is to be delivered shall instead be delivered to the Purchaser not later than five (5) Business Days after the occurrence of the event giving rise to such delivery requirement;
(w) Concurrently with the delivery of the Borrowing Base Certificate (as defined in the Bank Credit Documents) to the Bank Agent pursuant to the terms of Section 8.14 of the Bank Credit Documents, a copy of such Borrower Base Certificate; and
(x) Prior to the Final Closing, weekly and in any event no later than Monday of the immediately following week (ending on Sunday), a detailed cash flow forecast of the Company Parties and their Subsidiaries covering the immediately following four (4) weekly periods, together with a comparison of the actual cash flow and the forecasted cash flow for the immediately preceding period, each in form and substance satisfactory to the Purchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Iii Lp)
Information Reporting Requirements. The Company shall ---------------------------------- furnish to each of the PurchaserPurchasers:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a))Year, a consolidated and consolidating balance sheet sheets of the Company and its Subsidiaries subsidiaries as of the end of such Fiscal Year, and related consolidated and consolidating statements of operations, stockholders’ shareholders' equity and cash flows of the Company and its Subsidiaries subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by (i) a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized national standing selected by mutually acceptable to Purchasers and the Company and acceptable to the Purchaser (which opinion shall (A) provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall (B) not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries as to "going concern" or otherwise qualified or limited, in scope or in any respect other respect), and (other than, with respect ii) a schedule in a form acceptable to any Fiscal Year ending on or prior to September 30, 2002 onlythe Purchasers of the computations used by such accountants in determining, as to the re-characterization of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end of such Fiscal Year, copies compliance with the covenants contained in Section 10.20 of the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (a)Securities Purchase Agreement;
(b) Within two (2) days after it is prepared, and in no event Not later than thirty twenty (3020) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “Monthly Reporting Package”)month, all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such monthmonth on a Consolidated and Consolidating Basis and by division, with comparative information for the current monthly budget and from the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such monthmonth on a Consolidated and Consolidating Basis and by division, with comparative information for the current year-to-date budget and from the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for the current monthly budget and from the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for the current year-to-date budget and from the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such monthmonth on a Consolidated and Consolidating Basis, with comparative information as at the end of from the same month during the immediately preceding Fiscal Year;
(vi) a schedule in a form acceptable to the Purchasers of the computations used by the Company in determining compliance with the covenants contained in Section 10.20 of the Securities Purchase Agreement; and
(vivii) such other information, as any additional financial information so that the Purchasers may be requested by calculate compliance with the Purchaser, to monitor mutually agreeable critical success factors covenants contained in Section 10.20 of the Company that need to be achieved in order for the Company to meet its financial projections;Securities Purchase Agreement.
(Ac) On Wednesday As soon as available after the issuance of each week (which may be furnished via telecopier), a package of information (the “Weekly Reporting Package”), including: (i) the weekly internal sales report of the Company and its Subsidiaries any reports issued by any Governmental Authority with respect to the prior week; (ii) the consolidated accounts receivables compliance or non-compliance of the Company and or any of its Subsidiaries as of the end subsidiaries with Applicable Laws, a copy (or copies) of such prior week; report(s) (iii) the 90-Day Receivables as or written summaries of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such additional information as may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles timeany substantially similar oral reports(s)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser;
(d) At least thirty (30) days prior to the beginning of each Fiscal Year, a copy of the Company’s internal financial projections of the Company and its subsidiaries for such Fiscal Year (the “Annual Financial Projections”)Year, prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including including, without limitation, internal rate of return analysis and “"payback” " analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to the senior managementmanagement of the Company;
(e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser Purchasers under clause (a) of this Section 8.3 1.3 and (ii) the financial statements required to be ----------- delivered to the Purchaser Purchasers under clause (b) of this Section 8.3 1.3 with ----------- respect to each calendar month which ends on the last day of any Fiscal Quartermonth, a Compliance Certificatecompliance certificate, in substantially the form previously furnished attached to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser (a “Compliance Certificate”)Agreement, signed on behalf of the Company by the Company's President and Chief Executive Officer and the its Chief Financial Officer of the CompanyOfficer, certifying that each of them has reviewed this Agreement and the other Investment Documents and such the financial statements (including the financial condition and results of operations) of the Company and its Subsidiaries subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed set forth in such Compliance Certificate;
(f) Promptly after submission to any Governmental Authority (and in any event not later than five (5) days thereafter)Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authoritysubsidiaries;
(g) Promptly As soon as possible (and in any event not later than five within three (53) daysBusiness Days) after the issuance of any Compliance Report, or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one (1) Business Day) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, written notice of (i) the occurrence of any event, act act, development or condition which constitutes a Default or Event of Default or a “Default” any "default" or “Event "event of Default” as defined in default" under the Senior Credit terms of any Other Debt 5- Documents; (ii) the commencement of any litigation against the Company or any of its Subsidiaries involving an amount in excess of $100,000 subsidiaries or any investigation or other proceeding of any Governmental Authority against the Company or any of its Subsidiariessubsidiaries; (iii) receipt of any notice of default or termination under or related to any Material Contract; or (iiiiv) any event, occurrence other event or development which could would reasonably be expected to have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item the event, act, condition, Default, Event of Default, default, event of default, litigation or matter investigation or other proceeding and what action the Company Company, its subsidiaries or any other Person is taking or proposes to take to cure the same; and;
(ih) Promptly upon request (As soon as available and in any event not later than five within thirty (530) calendar days thereafter)after the end of each Fiscal Year, such other information concerning a report summarizing the businessinsurance coverage specifying type, operations, condition (financial or otherwiseamount and carrier) or affairs of in effect for the Company or any and each of its Subsidiaries or other Affiliates subsidiaries and containing such additional information as the Purchaser Purchasers may from time to time request (provided that if such information is in the possession of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser).reasonably specify;
Appears in 1 contract
Samples: Investor Rights Agreement (Falcon Products Inc /De/)
Information Reporting Requirements. The Company Companies shall furnish to the PurchaserPurchaser the following:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a))Year, on a consolidated Consolidated and Consolidating basis, balance sheet sheets of the Company Parent and its Subsidiaries as of the end of such Fiscal Year, and, on a Consolidated and Consolidating basis, related consolidated statements of operations, stockholders’ shareholders' equity and cash flows of the Company Parent and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by (i) a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized national standing selected by the Company and mutually acceptable to Purchaser and the Purchaser Companies (which opinion shall (A) provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall GAAP (B) not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries as to "going concern" or otherwise qualified or limited, in scope or in any other respect and (other thanC) state that such accounting firm has obtained no knowledge that a Default or Event of Default has occurred and is continuing, with respect to any Fiscal Year ending on or prior to September 30if, 2002 onlyin the opinion of such accounting firm, a Default or Event of Default has occurred and in continuing, a statement as to the re-characterization of the TreeCon Accounts Receivable as nature thereof), and (ii) a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers schedule in a form acceptable to the Purchaser of the computations used by such accountants in draft formdetermining, not later than ninety (90) days after as of the end of such Fiscal Year, copies of compliance with the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (a)covenants contained in Section 10.15;
(b) Within two (2) days after it is prepared, and in no event Not later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “"Monthly Reporting Package”" ), all in reasonable detail and prepared in accordance with GAAPdetail, consisting of at least the following:
(i) an income statement for such monthmonth on a Consolidated and Consolidating Basis for the Parent and its Subsidiaries, with comparative information for from the current monthly budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such monthmonth on a Consolidated and Consolidating Basis for the Parent and its Subsidiaries, with comparative information for from the current year-to-date budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for from the current monthly budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for from the current year-to-date budget Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such monthmonth on a Consolidated and Consolidating Basis for the Parent and its Subsidiaries, with comparative information from the Initial Financial Projections and, once provided pursuant to Section 9.3(e), the Annual Financial Projections, and as at the end of the same month during the immediately preceding Fiscal Year; and;
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company Parties that need to be achieved in order for the Company Parties to meet its their financial projections, including, without limitation, the Average Billable Headcount, receivable aging and payables aging;
(Avii) On Wednesday a schedule in a form acceptable to the Purchaser of the computations used by the Company Parties in determining compliance with the covenants contained in Section 10.15;
(viii) monthly detail supporting the unbilled accounts receivable balances and the bxxxxxxx in excess of cost;
(ix) a schedule of detailed information regarding new and terminated Material Contracts with customers;
(x) any additional financial information so that the Purchaser may calculate compliance with the covenants contained in Section 10.15; and
(xi) a progress report on the establishment by the Company Parties of an upgraded financial reporting system to account for non-standard contracts and other manual transactions;
(c) As soon as available and in any event within three (3) Business Days after the end of each week (which may be furnished via telecopierending on Sunday), a package of information weekly reporting package, as determined by Purchaser, for such week (the “Weekly Reporting PackageReport”), including: (i) the weekly internal sales report of the Company and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries as of the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such additional information as may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser;
(d) As soon as available (and in any event not later than the date the Weekly Report is due) after the issuance of any Governmental Report, or series of Governmental Reports, a copy (or copies) of such Governmental Report(s) (or written summaries of any substantially similar oral reports(s));
(e) At least thirty fifteen (3015) days prior to the beginning of each Fiscal Year, a copy of the Company’s internal financial projections of the Company Parties for such Fiscal Year (the “"Annual Financial Projections”"), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “"payback” " analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company Parties to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior managementExxxxx X. Xxxxx;
(ef) Simultaneously At the Final Closing, and simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 9.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 9.3 with respect to each calendar month which ends on the last day of any Fiscal Quartermonth, a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser attached as Exhibit E (a “"Compliance Certificate”"), signed on behalf of the Parent and the Company Parties by the Parent’s President and Chief Executive Officer and the or its Chief Financial Officer of the CompanyOfficer, certifying that each of them has reviewed this Agreement and the other Investment Documents and such the financial statements (including the financial condition and results of operations) of the Company Parent and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed set forth in such Compliance Certificate;
(fg) Promptly after the same becomes publicly available (but not later than the date the Weekly Report is due), copies of any Company SEC Documents as shall be filed by any Company Party pursuant to the requirements of the Securities Act or the Exchange Act;
(h) Promptly after submission to any Governmental Authority (and in any event but not later than five (5) days thereafterthe date the Weekly Report is due), all documents and information furnished to such Governmental Authority in connection with any investigation of any Company Party not in the Company or any ordinary course of its Subsidiaries other than routine inquiries by such Governmental Authoritybusiness;
(gi) Promptly As soon as possible after any Company Party obtains knowledge thereof (and in any event but not later than five (5) days) after the issuance of any Compliance Reportdate the Weekly Report is due), or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one (1) Business Day) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act act, development or condition which constitutes a Default or Event of Default or a “Default” any "default" or “Event "event of Default” as defined in default" under the Senior Credit terms of any Other Debt Documents; (ii) the commencement receipt of any litigation against the Company notice of default or termination under or related to any of its Subsidiaries involving an amount in excess of $100,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its SubsidiariesMaterial Contract; or (iii) any event, occurrence other event or development which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item the event, act, condition, Default, Event of Default, default, event of default, litigation or matter investigation or other proceeding and what action the Company Party or any other Person is taking or proposes to take to cure the same; and;
(j) As soon as available and in any event within thirty (30) calendar days after the end of each Fiscal Year, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Company Party and containing such additional information as the Purchaser may reasonably specify;
(k) Promptly upon (and in any event not later than the date the Weekly Report is due): (i) receipt thereof, copies of all reports submitted to the Company Parties by their independent certified public accountants in connection with each annual, interim or special audit examination of any Company Party made by such accountants, including the "management letter" submitted by such accountants to any Company Party in connection with their annual audit and (ii) delivery thereof to the Bank Agent, copies of all notices, reports, compliance certificates and financial information delivered to the Bank Agent by or on behalf of any Company Party;
(l) Promptly upon request (and in any event not later than five (5) days thereafterthe date the Weekly Report is due), such other notices and other information (whether or not in the possession of third parties) concerning the business, operations, condition (financial or otherwise) ), affairs or affairs prospects of the any Company or any of its Subsidiaries or other Affiliates Party as the Purchaser may from time to time request request, including written notices of any issuances or sales of Capital Stock of any Company Party;
(provided m) Prior to release, copies of all press releases that if such information mention the Purchaser;
(n) Promptly after any Company Party has knowledge or becomes aware thereof (and in any event not later than the date the Weekly Report is due), written notice of the occurrence of any Event of Loss with respect to the property or assets of any Company Party aggregating $100,000 or more;
(o) Prompt (but in any event not later than the possession date the Weekly Report is due) written notice, in reasonable detail, of any proposed creation, incorporation or acquisition of a third partySubsidiary of any Company Party;
(p) Prompt (but in any event not later than the date the Weekly Report is due) written notice of all actions, suits and proceedings before any Governmental Authority or arbitrator pending or threatened against or affecting any Company Party which (A) if adversely determined would involve an aggregate liability of $100,000 (or its equivalent in another currency) or more, or (B) could have a Material Adverse Effect;
(q) The reports and notices as required by the Collateral Documents;
(r) Not later than the date the Weekly Report is due, written notice of any material change in accounting policies or financial reporting practices by any Company shall take such actions as may Party;
(s) Promptly after any Company Party becomes aware thereof (and in any event not later than the date the Weekly Report is due), written notice of any material labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving any Company Party;
(t) Promptly upon the establishment of new accounts of the type set forth in Section 3.38 (Depository and Other Accounts) (and in any event not later than the date on which the next Weekly Report is to be necessary to obtain such information from such third party and shall furnish it immediately upon receipt delivered to the Purchaser), written notice thereof, including the account number, location and other relevant details
(u) Prompt written notice of any other condition or event which has resulted, or that would reasonably be expected to result, in a Material Adverse Effect;
(v) After the date on which the Weekly Report is no longer required to be delivered pursuant to the terms of this Agreement, any of the foregoing notices, reports or documents that are to be delivered to the Purchaser not later than the date on which the next such Weekly Report is to be delivered shall instead be delivered to the Purchaser not later than five (5) Business Days after the occurrence of the event giving rise to such delivery requirement;
(w) Concurrently with the delivery of the Borrowing Base Certificate (as defined in the Bank Credit Documents) to the Bank Agent pursuant to the terms of Section 8.14 of the Bank Credit Documents, a copy of such Borrower Base Certificate; and
(x) Prior to the Final Closing, weekly and in any event no later than Monday of the immediately following week (ending on Sunday), a detailed cash flow forecast of the Company Parties and their Subsidiaries covering the immediately following four (4) weekly periods, together with a comparison of the actual cash flow and the forecasted cash flow for the immediately preceding period, each in form and substance satisfactory to the Purchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Butler International Inc /Md/)
Information Reporting Requirements. The Company shall furnish to the Purchaser:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a)), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year, and related consolidated statements of operations, stockholders’ ' equity and cash flows of the Company and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company and acceptable to the Purchaser (which opinion shall provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries or otherwise qualified in any respect (other than, with respect to any Fiscal Year ending on or prior to September 30, 2002 only, as to the re-characterization of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end of such Fiscal Year, copies of the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (a);
(b) Within two (2) days after it is prepared, and in no event later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “"Monthly Reporting Package”"), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such month, with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such month, with comparative information for the current year-to-date budget and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current year-to-date budget and the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such month, with comparative information as at the end of the same month during the immediately preceding Fiscal Year; and
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections;
(Ac) On Wednesday of each week (which may to be furnished via telecopier), a package of information (the “"Weekly Reporting Package”"), including: (i) the weekly internal sales report of the Company and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries as of the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) borrowing base certificate, if any, required to be delivered to the Senior Lender during the prior week; and (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such any additional information as may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser;
(d) At least thirty (30) days prior to the beginning of each Fiscal Year, a copy of the Company’s 's internal financial projections for such Fiscal Year (the “"Annual Financial Projections”"), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “"payback” " analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior management;
(e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 with respect to each calendar month which ends on the last day of any Fiscal Quarter, a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Original Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser (a “"Compliance Certificate”"), signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, certifying that each of them has reviewed this Agreement and the other Investment Documents and such financial statements (including the financial condition and results of operations) of the Company and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed in such Compliance Certificate;
(f) Promptly after submission to any Governmental Authority (and in any event not later than five (5) days thereafter), all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authority;
(g) Promptly (and in any event not later than five (5) days) after the issuance of any Compliance Report, or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one (1) Business Day) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default or a “"Default” " or “"Event of Default” " as defined in the Senior Credit Documents; (ii) the commencement of any litigation against the Company or any of its Subsidiaries involving an amount in excess of $100,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; or (iii) any event, occurrence or development which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item or matter and what action the Company or any other Person is taking or proposes to take to cure the same; and
(i) Promptly upon request (and in any event not later than five (5) days thereafter), such other information concerning the business, operations, condition (financial or otherwise) or affairs of the Company or any of its Subsidiaries or other Affiliates as the Purchaser may from time to time request (provided that if such information is in the possession of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser).
Appears in 1 contract
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Information Reporting Requirements. The Company shall furnish to the Purchaser:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a)), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year, and related consolidated statements of operations, stockholders’ shareholders' equity and cash flows of the Company and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company and acceptable to the Purchaser (which opinion shall provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries or otherwise qualified in any respect (other than, with respect to any Fiscal Year ending on or prior to September 30, 2002 only, as to the re-characterization of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end of such Fiscal Year, copies of the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (a);
(b) Within two (2) days after it is prepared, and in no event later than thirty (30) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “"Monthly Reporting Package”"), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such month, with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such month, with comparative information for the current year-to-date budget and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current monthly budget and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments), with comparative information for the current year-to-date budget and the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such monthmonth (including specific line items for the TreeCon Accounts Receivable and any Tax Sharing Payable), with comparative information as at the end of the same month during the immediately preceding Fiscal Year; and
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections;
(Ac) On Wednesday of each week (which may to be furnished via telecopier), a package of information (the “"Weekly Reporting Package”"), including: (i) the weekly internal sales report of the Company and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries as of the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) borrowing base certificate, if any, required to be delivered to the Senior Lender during the prior week; and (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such any additional information as may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser;
(d) At least thirty (30) days prior to the beginning of each Fiscal Year, a copy of the Company’s 's internal financial projections for such Fiscal Year (the “"Annual Financial Projections”"), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “"payback” " analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior management;
(e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 with respect to each calendar month which ends on the last day of any Fiscal Quarter, a Compliance Certificate, in substantially the form previously furnished of Exhibit D attached to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser (a “Compliance Certificate”)Agreement, signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, certifying that each of them has reviewed this Agreement and the other Investment Documents and such financial statements (including the financial condition and results of operations) of the Company and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed set forth in such Compliance Certificate;
(f) Promptly after submission to any Governmental Authority (and in any event not later than five (5) days thereafter), all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authority;
(g) Promptly (and in any event not later than five (5) days) after the issuance of any Compliance Report, or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one (1) Business Dayday) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default or a “"Default” " or “"Event of Default” " as defined in the Senior Credit Documents; (ii) the commencement of any litigation against the Company or any of its Subsidiaries involving an amount in excess of $100,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; or (iii) any event, occurrence or development which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item or matter and what action the Company or any other Person is taking or proposes to take to cure the same; and
(i) Promptly upon request (and in any event not later than five (5) days thereafter), such other information concerning the business, operations, condition (financial or otherwise) or affairs of the Company or any of its Subsidiaries or other Affiliates as the Purchaser may from time to time request (provided that if such information is in the possession of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser).
Appears in 1 contract
Information Reporting Requirements. The Company Parties shall furnish to the Purchaser:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a))Year, a consolidated and consolidating balance sheet sheets of the Company and its Subsidiaries Parties as of the end of such Fiscal Year, and related consolidated and consolidating statements of operations, stockholders’ shareholders' equity and cash flows of the Company and its Subsidiaries Parties for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by (i) a report and an opinion, prepared in accordance with generally accepted auditing standards, of Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxx, P.C., or any other independent certified public accountants of recognized national standing as a "Big 5" accounting firm selected by the Company and acceptable to the Purchaser (which opinion shall (A) provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall (B) not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries as to "going concern" or otherwise qualified or limited, in scope or in any other respect and (other thanC) state that such accounting firm has obtained no knowledge that a Default has occurred and is continuing, with respect to any Fiscal Year ending on or prior to September 30if, 2002 onlyin the opinion of such accounting firm, a Default has occurred and in continuing, a statement as to the re-characterization of the TreeCon Accounts Receivable as nature thereof), and (ii) a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers schedule in a form acceptable to the Purchaser of the computations used by such accountants in draft formdetermining, not later than ninety (90) days after as of the end of such Fiscal Year, copies of compliance with the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (acovenants contained in Section 10.15);
(b) Within two (2) days Business Days after it is prepared, and in no event later than thirty (30x) twenty (20) days after the last day of each calendar month month, draft or preliminary copies of all the documents in the monthly financial package described in this Section 9.3(b) (or, if the Company delivers drafts thereof "Monthly Reporting Package") provided that the documents in clauses (iii) and of the Compliance Certificate to (iv) need not be delivered pursuant to clause within such twenty (e20) of this Section 8.3 not later than thirty day period and (30y) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five twenty (4520) days Business Days after the last day of any such each calendar month), a monthly financial package for such month (final copies of all documents in the “Monthly Reporting Package”Package (other than the financial information described in clause (x)), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such monthmonth on a consolidated and consolidating basis and by division, with comparative information for the current monthly budget Initial Financial Projections for the Fiscal Year ended September 30, 2000 and the Annual Financial Projections thereafter, and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such monthmonth on a consolidated and consolidating basis and by division, with comparative information for the current year-to-date budget Initial Financial Projections for the Fiscal Year ended September 30, 2000 and the Annual Financial Projections thereafter, and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for the current monthly budget Initial Financial Projections for the Fiscal Year ended September 30, 2000 and the Annual Financial Projections thereafter, and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for the current year-to-date budget Initial Financial Projections for the Fiscal Year ended September 30, 2000 and the Annual Financial Projections thereafter, and the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such monthmonth on a consolidated and consolidating basis, with comparative information for the Initial Financial Projections for the Fiscal Year ended September 30, 2000 and the Annual Financial Projections thereafter, and as at the end of the same month during the immediately preceding Fiscal Year; and;
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections, including, without limitation, aged backlog, receivables aging, and payables aging;
(A) On Wednesday of each week (which may be furnished via telecopier), a package of information (the “Weekly Reporting Package”), including: (i) the weekly internal sales report of the Company and its Subsidiaries with respect to the prior week; (ii) the consolidated accounts receivables of the Company and its Subsidiaries as of the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts payables of the Company and its Subsidiaries as of the end of such prior week; (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis for schedule in a form acceptable to the twelve (12) week period commencing at the end Purchaser of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such additional information as may be mutually agreed upon computations used by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day Parties in all accounts, including sufficient information to calculate determining compliance with the Minimum Liquidity covenant set forth covenants contained in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaser10.15;
(d) At least thirty (30) days prior to the beginning of each Fiscal Year, a copy of the Company’s internal financial projections for such Fiscal Year (the “Annual Financial Projections”), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including internal rate of return analysis and “payback” analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior management;
(e) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 with respect to each calendar month which ends on the last day of any Fiscal Quarter, a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser (a “Compliance Certificate”), signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, certifying that each of them has reviewed this Agreement and the other Investment Documents and such financial statements (including the financial condition and results of operations) of the Company and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed in such Compliance Certificate;
(f) Promptly after submission to any Governmental Authority (and in any event not later than five (5) days thereafter), all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authority;
(g) Promptly (and in any event not later than five (5) days) after the issuance of any Compliance Report, or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one (1) Business Day) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default or a “Default” or “Event of Default” as defined in the Senior Credit Documents; (ii) the commencement of any litigation against the Company or any of its Subsidiaries involving an amount in excess of $100,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; or (iii) any event, occurrence or development which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item or matter and what action the Company or any other Person is taking or proposes to take to cure the same; and
(i) Promptly upon request (and in any event not later than five (5) days thereafter), such other information concerning the business, operations, condition (financial or otherwise) or affairs of the Company or any of its Subsidiaries or other Affiliates as the Purchaser may from time to time request (provided that if such information is in the possession of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser).
Appears in 1 contract
Information Reporting Requirements. The Company shall furnish to the Purchaser:
(a) As soon as available, and in no event later than ninety (90) days after the end of each Fiscal Year (as such number of days may be extended as provided in the last sentence of this clause (a))Year, a consolidated balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year, and related consolidated statements of operations, stockholders’ shareholders' equity and cash flows of the Company and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized national standing as a "Big 5" accounting firm selected by the Company and acceptable to the Purchaser (which opinion shall provide that such consolidated financial statements present fairly, in all material respects, the financial position for the periods indicated in conformity with GAAP, and which opinion shall not be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the records of the Company or any of its Subsidiaries or otherwise qualified in any respect (other than, with respect to any Fiscal Year ending on or prior to September 30, 2002 only, as to the re-characterization of the TreeCon Accounts Receivable as a dividend as opposed to an intercompany accounts receivable). The parties agree that the ninety (90) day period set forth above for any Fiscal Year shall be extended for an additional fifteen (15) days for such Fiscal Year if the Company delivers to the Purchaser in draft form, not later than ninety (90) days after the end of such Fiscal Year, copies of the draft audited financial statements, including the notes thereto, required to be furnished to the Purchaser under this clause (arespect);
(b) Within two (2) days Business Days after it is prepared, and in no event later than thirty twenty (3020) days after the last day of each calendar month (or, if the Company delivers drafts thereof and of the Compliance Certificate to be delivered pursuant to clause (e) of this Section 8.3 not later than thirty (30) days after the end of any calendar month which is also the end of any Fiscal Quarter, then in no event later than forty-five (45) days after the last day of any such calendar month), a monthly financial package for such month (the “Monthly Reporting Package”"MONTHLY REPORTING PACKAGE"), all in reasonable detail and prepared in accordance with GAAP, consisting of at least the following:
(i) an income statement for such monthmonth on a consolidated and consolidating basis and by division, with comparative information for the current monthly budget Initial Financial Projections for the Fiscal Year ended December 31, 2000 and the Annual Financial Projections thereafter, and the same month during the immediately preceding Fiscal Year;
(ii) a year-to-date income statement for such monthmonth on a consolidated and consolidating basis and by division, with comparative information for the current year-to-date budget Initial Financial Projections for the Fiscal Year ended December 31, 2000 and the Annual Financial Projections thereafter, and the same year-to-date month during the immediately preceding Fiscal Year;
(iii) a cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for the current monthly budget Initial Financial Projections for the Fiscal Year ended December 31, 2000 and the Annual Financial Projections thereafter, and the same month during the immediately preceding Fiscal Year;
(iv) a year-to-date cash flow statement for such month (including specific line items for any Tax Sharing Cash Payments)month, with comparative information for the current year-to-date budget Initial Financial Projections for the Fiscal Year ended December 31, 2000 and the Annual Financial Projections thereafter, and the same year-to-date period during the immediately preceding Fiscal Year;
(v) a balance sheet as at the end of such monthmonth on a consolidated and consolidating basis, with comparative information for the Initial Financial Projections for the Fiscal Year ended December 31, 2000 and the Annual Financial Projections thereafter, and as at the end of the same month during the immediately preceding Fiscal Year; and
(vi) such other information, as may be requested by the Purchaser, to monitor mutually agreeable critical success factors of the Company that need to be achieved in order for the Company to meet its financial projections, including, without limitation, aged backlog, receivables aging, and payables aging;
(Ac) On Wednesday No later than Tuesday of each week (which may be furnished via telecopier)the following week, a package of financial information (the “Weekly Reporting Package”), including: (i) the weekly internal sales report of regarding the Company and its Subsidiaries with respect to the prior immediately preceding week, all in reasonable detail and prepared in accordance with GAAP, consisting of the following: (i) a backlog report for SASD as of the close of business at the end of such week; (ii) the consolidated accounts receivables a copy of the Company and its Subsidiaries weekly borrowing base certificate delivered to the Bank; (iii) a statement showing the cash position as of the close of business at the end of such prior week; (iii) the 90-Day Receivables as of the end of such prior week; (iv) the consolidated accounts a trade payables aging schedule as of the Company and its Subsidiaries as closing of business at the end of such prior week; and (v) the 60-Day Payables as of the end of such prior week; (vi) a copy of the Borrowing Base Certificate (as defined in the Senior Credit Agreement) delivered to the Senior Lender during the prior week; (vii) a cash flow analysis for the twelve (12) week period commencing at the end of the prior week; (viii) a written “new business” report updating the Company’s business generation activities during the prior week, in form and substance satisfactory to the Purchaser; (ix) a written “yield report” of the Company, in form and substance satisfactory to the Purchaser; (x) a written report detailing the Company’s progress with respect to each First Amendment Business Plan; and (xi) such additional other information as the Purchaser may be mutually agreed upon by the Company and the Purchaser; and (B) on a daily basis (to be received via telecopier not later than 12:00 noon (Los Angeles time) a package of information (the “Daily Reporting Package”) consisting of (i) on a daily basis (to be received via telecopier not later than 10:00 a.m. (Los Angeles time)) a package of information consisting of (i) a report setting forth the Borrower’s cash position and payment activity at the end of the immediately preceding Business Day in all accounts, including sufficient information to calculate compliance with the Minimum Liquidity covenant set forth in Section 9.14(h), and form and substance satisfactory to the Purchaser; and (ii) such additional information as may be requested by the Purchaserrequest;
(d) Promptly (and in any event not later than three (3) Business Days) after the issuance of any Audit Report, or series of Audit Reports, a copy (or copies) of such Audit Report(s) (or written summaries of any substantially similar oral reports(s));
(e) At least thirty (30) days prior to the beginning of each Fiscal Year, a copy of the Company’s 's internal financial projections for such Fiscal Year (the “Annual Financial Projections”"ANNUAL FINANCIAL PROJECTIONS"), prepared on a monthly basis and in reasonable detail, which shall include the following: (i) a balance sheet, income statement and cash flow statement for each month of such Fiscal Year; (ii) a capital expenditures budget, including including, without limitation, internal rate of return analysis and “"payback” " analysis; (iii) an explanation in reasonable detail of all material changes proposed for the business and its personnel and facilities; (iv) an explanation in reasonable detail of all material assumptions underlying such financial projections, which assumptions shall be believed by the Company to be reasonable; (v) a description of the opportunities to be pursued during such Fiscal Year; and (vi) a description of any incentive compensation expected to be paid to senior management;
(ef) Simultaneously with the delivery of (i) the financial statements required to be delivered to the Purchaser under clause (a) of this Section 8.3 SECTION 9.3 and (ii) the financial statements required to be delivered to the Purchaser under clause (b) of this Section 8.3 SECTION 9.3 with respect to each calendar month which ends on the last day of any Fiscal Quarter, a Compliance Certificate, in substantially the form previously furnished to the Company under the Existing Securities Purchase Agreement with such modifications appropriate to reflect the additional and/or different financial covenants herein, in form and substance satisfactory to Purchaser (a “Compliance Certificate”)of EXHIBIT C, signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, certifying that each of them has reviewed this Agreement and the other Investment Documents and such financial statements (including the financial condition and results of operations) of the Company and its Subsidiaries for purposes of delivering such Compliance Certificate and further certifying as to the matters required to be addressed set forth in such Compliance Certificate;
(fg) Promptly after submission to any Governmental Authority (and in any event not later than five two (52) days Business Days thereafter), all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authority;
(g) Promptly (and in any event not later than five (5) days) after the issuance of any Compliance Report, or series of Compliance Reports, which could have a Material Adverse Effect, a copy (or copies) of such Compliance Report(s) (or written summaries of any oral determination(s));
(h) Promptly (and in any event not later than one two (12) Business DayDays) after an officer of the Company obtains knowledge thereof or any Executive Officer of the Company should have obtained knowledge thereof, notice of (i) the occurrence of any event, act or condition which constitutes a Default or Event of Default or a “Default” any "default" or “Event "event of Default” as defined in default" under the Senior Credit terms of any Other Debt Documents; (ii) the commencement of any litigation against the Company or any of its Subsidiaries involving an amount in excess of $100,000 50,000 or any investigation or other proceeding of any Governmental Authority against the Company or any of its Subsidiaries; or (iii) any event, occurrence or development other event which could have a Material Adverse Effect. Each such notice shall specify in reasonable detail the nature of such item the event, act, condition, Default, Event of Default, default, event of default, litigation or matter investigation or other proceeding and what action the Company or any other Person is taking or proposes to take to cure the same;
(i) Concurrently with the delivery of any "Notice of Major Transaction" or Notice of Triggering Event" (as such terms as defined in the Company's charter), copies of such notices furnished to the holders of the Series A Preferred;
(i) Within five (5) Business Days after the calendar month ending January 31, 2000, a backlog report for SSSI as of the end of such calendar month, signed by the Chief Executive Officer, Chief Operating Officer of Chief Financial Officer of the Company and in reasonable detail,(ii) within five (5) Business Days after the two week period ending February 11, 2000, a backlog report for SSSI as of the end of such two week period, signed by the Chief Executive Officer, Chief Operating Officer of Chief Financial Officer of the Company and in reasonable detail; and (iii) within five (5) Business Days after the end of each one week period ending February 18, 2000 and thereafter, a backlog report for SSSI as of the end of each such week, signed by the Chief Executive Officer, Chief Operating Officer of Chief Financial Officer of the Company and in reasonable detail; and
(ik) Promptly upon request (and in any event not later than five three (53) days Business Days thereafter), such other notices and other information (whether or not in the possession of third parties) concerning the business, operations, condition (financial or otherwise) or affairs of the Company or any of its Subsidiaries or other Affiliates as the Purchaser may from time to time request (provided that if such information is in request, including, without limitation, written notices of any sales of Common Stock by the possession of a third party, the Company shall take such actions as may be necessary to obtain such information from such third party and shall furnish it immediately upon receipt to the Purchaser)Principal Shareholders.
Appears in 1 contract
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
