Reporting Obligations. Unless Tenant is a public company, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (90) days after the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligation.
Appears in 6 contracts
Samples: Lease Agreement (Vertex Pharmaceuticals Inc / Ma), Lease Agreement (Vertex Pharmaceuticals Inc / Ma), Lease Agreement (Senior Housing Properties Trust)
Reporting Obligations. Unless Tenant is So long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter, or, if Tenant is lawfully the Borrower or Select Energy, Inc. ceases to be required to file submit such a report), consolidated and (y) within one hundred fifty (150) days after each unconsolidated balance sheets of Tenant’s fiscal years during the Term audited financial Borrower or Select Energy, Inc., as the case may be, as of the end of such Fiscal Quarter and consolidated and unconsolidated statements of income and retained earnings and of cash flows of the Tenant Borrower or Select Energy, Inc., as the case may be, for the prior fiscal year (together with a copy period commencing at the end of the most recently filed United States Securities previous Fiscal Year and Exchange Commission form 10Kending with the end of such Fiscal Quarter, if Tenant is lawfully required all in reasonable detail and duly certified (subject to file such a report). If any year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the financial documentation required under Section 17.05 is not provided when requiredBorrower or Select Energy, and if Tenant fails to furnish Inc., as the same to Landlord within fifteen (15) days of Landlord’s written request thereforcase may be, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided as having been prepared in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises generally accepted accounting principles consistent with those applied in the recipients preparation of the existence of Landlord’s confidentiality obligation.Financial Statements; and
Appears in 2 contracts
Samples: Credit Agreement (Northeast Utilities System), Term Loan Agreement (North Atlantic Energy Corp /Nh)
Reporting Obligations. Unless Tenant is a public companyXxxxxxx will provide the following information to PBGC, in addition to any reporting obligations that the Xxxxxxx Group may have under ERISA or the Internal Revenue Code:
A. Copies to PBGC's Corporate Finance and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary Negotiations Department of any notices otherwise required to determine whether Tenant meets the Financial Standard in connection be filed with the periodic determination Internal Revenue Service or PBGC concerning the Plans at the time the filing is made;
B. Written notice 30 days prior to any Plan merger or any transfer of whether Tenant meets liabilities or assets described in the Financial StandardInternal Revenue Code, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (90) days after the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant statingunder Internal Revenue Code section 414(l), to the best of his or her knowledge, whether from any Plan (other than de minimis mergers or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required transfers).
C. Written notice 30 days prior to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any change in any of the financial documentation Plans' actuarial assumptions or methods for the purpose of the minimum funding standard account (other than changes required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Leaseby law), then Tenant which changes shall be subject to PBGC's consent, which consent shall not be unreasonably withheld.
D. Written notice 30 days prior to any change in default under this Lease and the unrestricted cash, cash equivalent and marketable securities any of the Tenant Plans' Plan Years. Such changes shall be deemed subject to PBGC's consent, which consent shall not be zero until financial statements are provided unreasonably withheld.
E. Each Plan's Actuarial Valuation Report no later than the last day of the Plan Year.
F. Each Plan's Form 5500 when filed.
G. By the last day of each Plan Year, a statement certified by one or more of the Plans' enrolled actuaries, specifying the following:
1. The allocation among the Plans of any Enhanced Contributions required for the Plan Year, showing the calculation of each Plan's unfunded current liability in accordance with Internal Revenue Code section 404(a)(1)(D)(i);
2. The amount of contributions necessary to maintain each Plan's Required Credit Balance and details of the calculation of each Plan's Required Credit Balance; and
3. A statement that the contribution necessary to maintain each Plan's Required Credit Balance is not limited by the Maximum Tax Deductible Contribution Amount for the Plan Year, or, if the contribution is so limited, the statement shall contain details showing the calculation of the limitation and the reallocation to other Plans or to later Plan Years.
H. By the last day of each Plan Year, a certification from Xxxxxxx that contributions at least equal to the lesser of V.H.1. or V.H.2. below have been made to each Plan.
1. The amount necessary to maintain each Plan's Required Credit Balance.
2. The maximum tax deductible amount that may be contributed to each Plan for the Plan Year.
I. A copy of Plan amendments within 10 days of adoption.
J. Written notice within 5 days of any missed quarterly contribution, Minimum Funding Contribution, Enhanced Contribution, or any other contribution required to be made to a Plan pursuant to this Section 17.05. Unless public by other meansAgreement.
K. A written statement indicating the number of shares contributed to the Stock Trust pursuant to section II.B. above and the price per share as set forth in the Disclosure Statement filed with respect to the Reorganization Plan.
L. Written confirmation as of the end of 2003 and again as of the end of 2004, Landlord will maintain confidential such statementsaccounting for all sales of stock, except as required by applicable law or Court order; however Landlord may provide information from such statements including the number of shares sold and net proceeds, and amounts contributed to Landlord’s accountants, lenders, attorneys the Plans pursuant to sections II.A.1.(c) and partners, as II.B. above.
M. Written confirmation that the $50,000,000 Enhanced Contribution pursuant to section II.A.1.(a) above was in fact contributed.
N. Written confirmation that the $50,000,000 Enhanced Contribution pursuant to section II.A.1.(b) above was in fact contributed.
O. For so long as Landlord advises Xxxxxxx is not a company subject to the recipients periodic reporting requirements under the federal securities laws, copies of the existence of Landlord’s confidentiality obligationall information provided to Xxxxxxx'x shareholders.
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant Borrower shall, upon request unless the Majority Lenders shall otherwise consent in each instance by Landlordwriting, furnish to Landlord the Administrative Agent in sufficient copies for each Lender, the following: :
(xi) as soon as possible and in any event within sixty five (605) days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty (50) days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, (A) if and ninety (90) days after so long as the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, Borrower is required to submit to the best of his or her knowledgeSecurities and Exchange Commission a report on Form 10-Q, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter and (B) if the Borrower ceases to be required to submit such report, a balance sheet of the Borrower as of the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 6.01(e) hereof, in each such case, delivered together with a certificate of said officer (1) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully required continuing, a statement as to file the nature thereof and the action which the Borrower proposes to take with respect thereto and (2) (y) demonstrating compliance with Section 7.01(j) for and as of the end of such a reportfiscal quarter and compliance with Section 7.02(b), as of the dates on which any Debt was created, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), and (yz) demonstrating, after giving effect to the incurrence of any Debt created, incurred or assumed during such fiscal quarter (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), compliance with Section 7.01(j) for the remainder of the fiscal year of the Borrower based on the operating budget/forecast of operations delivered pursuant to Section 7.03(iv) hereof for such fiscal year, in each case, such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within one hundred fifty (150) 105 days after the end of each of Tenant’s fiscal years during the Term audited financial statements year of the Tenant for Borrower, (A) if and so long as the prior fiscal year (together with Borrower is required to submit to the Securities and Exchange Commission a report on Form 10-K, a copy of the most recently filed United States Borrower's report on Form 10-K submitted to the Securities and Exchange Commission with respect to such year and (B) if the Borrower ceases to be required to submit such report, a copy of the annual audit report for such year for the Borrower including therein a balance sheet of the Borrower as of the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, in each case certified by a nationally-recognized independent public accountant, in each such case delivered together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer (A) (1) stating that the financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of financial statements referred to in Section 6.01(e) hereto, and (2) no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (B) demonstrating compliance with Section 7.01(j) for and as of the end of such fiscal year and compliance with Section 7.02(b), as of the dates on which any Debt was created, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), such demonstration to be in a schedule (in form 10Ksatisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance.
(iv) as soon as available and in any event before March 31 of each fiscal year a copy of an operating budget/forecast of operations of the Borrower as approved by the Board of Directors of the Borrower in form satisfactory to the Lenders for the next fiscal year of the Borrower, together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower stating that such budget/forecast was prepared in good faith and on reasonable assumptions;
(v) as soon as available and in any event no later than the New Hampshire Public Utilities Commission shall have received the Borrower's annual submission, if Tenant any, relating to the "return on equity collar" referred to in the Rate Agreement, a copy of such annual submission of the Borrower;
(vi) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any ERISA Plan Termination Event described in clause (i) of the definition of ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (B) within 10 days after the Borrower knows or has reason to know that any other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(viii) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each ERISA Plan (if any) to which the Borrower is lawfully required a contributing employer;
(ix) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $10,000,000 pursuant to file such a reportSection 4202 of ERISA in respect of which the Borrower may be liable;
(x) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events (A) of the type described in Section 6.01(f). If , or (B) which purport to affect the legality, validity or enforceability of any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law Loan Documents or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligation.Significant Contracts;
Appears in 1 contract
Samples: Revolving Credit Agreement (North Atlantic Energy Corp /Nh)
Reporting Obligations. Unless Tenant is a public companySo long as at least 60 shares of Preferred Stock are outstanding, and Tenant’s applicable quarterly and annual filings clearly set forth so long as Warrants are outstanding under which more than 700,000 shares of Common Stock may be acquired, the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, Seller shall furnish to Landlord the following: Purchasers, or any other persons who hold any of the Preferred Stock or Warrants (xprovided that such holders give notice to the Seller that they hold Preferred Stock or Warrants and furnish their addresses) promptly upon their becoming available one copy of each report, notice or proxy statement sent by the Seller to its stockholders generally, and of each regular or periodic report (pursuant to the Exchange Act) and any registration statement, prospectus or written communication other than transmittal letters (pursuant to the Securities Act) relating to the Conversion Shares, the Dividend Shares and the Warrant Shares and filed by the Seller with (i) the Commission or (ii) any securities exchange on which shares of Common Stock are listed, provided, however, that the Seller shall not be required to deliver any report filed and available through the SEC's XXXXX website. To the extent that the Seller is no longer required to provide information pursuant to the Exchange Act, the Seller shall provide the Purchasers with (i) within sixty (60) 45 days after the close of each of its first three fiscal quarters during quarter in each fiscal year of the Term Seller an unaudited consolidated balance sheet of the Seller, a consolidated statement of income of the Seller, and a consolidated statement of cash flows of the Seller, as at the end of and for the period commencing at the end of the previous fiscal year and ending with such month, prepared in accordance with GAAP, subject to normal year-end adjustments and complete notes thereto; and (and ninety (90ii) within 90 days after the fourth fiscal quarter during close of each fiscal year) an unaudited financial year then ended of the Seller a consolidated balance sheet of the Seller, a consolidated statement of Tenant together with income of the Seller, and a letter from consolidated statement of cash flows of the chief financial officer Seller, as at the end of Tenant statingand for the fiscal year then ended, setting forth the corresponding figures of the previous fiscal year in comparative form, and certified (without any qualification or exception reasonably deemed material by the Purchasers, other than a qualification as to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy going-concern status of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required to file such a report), and (ySeller or the unavailability of Xxxxxx Xxxxxxxx LLP) within one hundred fifty (150) days after each of Tenant’s fiscal years during by the Term audited financial statements independent certified public accountants of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationSeller.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Spectrum Pharmaceuticals Inc)
Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Majority Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent in sufficient copies for each Lender, the following: :
(xi) as soon as possible and in any event within sixty five (605) days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty (50) days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, (A) if and ninety (90) days after so long as the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, Borrower is required to submit to the best of his or her knowledgeSecurities and Exchange Commission a report on Form 10-Q, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter and (B) if the Borrower ceases to be required to submit such report, a balance sheet of the Borrower as of the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles, in each such case, delivered together with a certificate of said officer (X) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (Y) demonstrating compliance with Section 7.01(j) for and as of the end of such fiscal quarter and compliance with Sections 7.02(b) and (c), as of the dates on which any Debt was created, issued, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt") during such quarter and as of the end of such fiscal quarter, such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within 105 days after the end of each fiscal year of the Borrower, (A) if and so long as the Borrower is required to file such submit to the Securities and Exchange Commission a report)report on Form 10-K, and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Borrower's report on Form 10-K submitted to the Securities and Exchange Commission with respect to such year and (B) in any case, a copy of the annual report for such year for the Borrower including therein an audited balance sheet of the Borrower as of the end of such fiscal year and audited statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, in each case certified by a nationally-recognized independent public accountant and delivered with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer (X) stating that no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (Y) demonstrating compli- ance with Section 7.01(j) for and as of the end of such fiscal year and compliance with Sections 7.02(b) and (c) as of the dates on which any Debt was created, issued, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (viii) of the definition of "Debt") during the last fiscal quarter of such fiscal year and as of the end of such fiscal year, such demonstration to be in a schedule (in form 10Ksatisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iv) as soon as available and in any event within 60 days prior to March 31 of each fiscal year, a copy of an operating budget/forecast of operations of the Borrower as approved by the Board of Directors of the Borrower in form satisfactory to the Lenders for the next fiscal year of the Borrower, together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower stating that such budget/forecast was prepared in good faith and on reasonable assumptions;
(v) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any ERISA Plan Termination Event described in clause (i) of the definition of ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (B) within 10 days after the Borrower knows or has reason to know that any other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Plan Termination Event and the action, if Tenant any, which the Borrower proposes to take with respect thereto;
(vi) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(vii) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuar- ial Information) to the Annual Report of the Borrower (Form 5500 Series) with respect to each ERISA Plan (if any) to which the Borrower is lawfully required a contributing employer;
(viii) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $10,000,000 pursuant to file such a reportSection 4202 of ERISA in respect of which the Borrower may be liable;
(ix) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events (A) of the type described in Section 6.01(f). If , or (B) which purport to affect the legality, validity or enforceability of any of the Loan Documents or Signifi- cant Contracts;
(x) promptly after the sending or filing thereof, copies of all such proxy statements, financial documentation required under Section 17.05 is not provided when requiredstatements, and reports which the Borrower sends to its public security holders (if Tenant fails to furnish any) or files with, and copies of all regular, periodic and special reports and all registration statements, if any, which the same to Landlord within fifteen (15) days of Landlord’s written request Borrower files with, the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange;
(xi) promptly after the sending or filing thereof, copies of all such proxy statements, financial statements, and reports which PSNH sends to its public security holders (if Tenant has not cured such failure within five any) or files with, and copies of all regular, periodic and special reports and all registration statements, if any, which PSNH files with, the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange;
(5xii) business days promptly after receiving a second written request from Landlord receipt thereof, any assertion of the character described in Section 8.01(i) hereof and the action the Borrower proposes to take with respect thereto;
(provided both xiii) promptly after knowledge of any material default under any Significant Contract or the Rate Agreement, notice of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cashaction the Borrower proposes to take with respect thereto;
(xiv) promptly after knowledge of any amendment, cash equivalent and marketable securities modification or other change to any Significant Contract or the Rate Agreement or to any Governmental Approval affecting any Significant Contract or the Rate Agree- ment, notice of such amendment, modification or other change; and
(xv) promptly after requested, such other information respecting the financial condition, operations, properties, prospects or otherwise, of the Tenant shall be deemed Borrower or PSNH as the Administrative Agent or Majority Lenders may from time to be zero until financial statements are provided time reasonably request in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationwriting.
Appears in 1 contract
Samples: Term Credit Agreement (North Atlantic Energy Corp /Nh)
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(a) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action that the Borrower proposes to take with respect thereto;
(i) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower’s and each of its Principal Subsidiary’s Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Qpursuant to Sections 13 or 15 of the U.S. Securities Exchange Act of 1934, as amended) submitted to the Securities and Exchange Commission with respect to such quarter, and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is not required to, or ceases to be required to submit such report, consolidated balance sheets of, Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, as of the end of such Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of such Person for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements; and
(ii) concurrently with the delivery of the financial statements described in clause (i) above, a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(A) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements,
(B) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully continuing, describing the nature thereof and the action that the Borrower proposes to take with respect thereto, and
(C) demonstrating the Borrower’s compliance with the covenants set forth in Section 7.03, for and as of the end of such Fiscal Quarter, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(i) as soon as available, and in any event within 105 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s and each of its Principal Subsidiary’s Annual Reports on Form 10-K (if such Principal Subsidiary is required to file such a report), report with the U.S. Securities and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Exchange Commission pursuant to Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together Securities and Exchange Commission with respect to such Fiscal Year, and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is not required to, or ceases to be required to submit such report, a copy of the most recently filed United States annual audit report for such year for Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, including therein consolidated balance sheets of such Person as of the end of such Fiscal Year and consolidated statements of income and retained earnings and of cash flows of such Person, for such Fiscal Year, all in reasonable detail and certified by a nationally-recognized independent public accountant; and
(ii) concurrently with the delivery of the financial statements described in clause (i) above, a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(A) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements, and
(B) stating that no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, describing the nature thereof and the action that the Borrower proposes to take with respect thereto, and
(C) demonstrating the Borrower’s compliance with the covenants set forth in Section 7.03, for and as of the end of such Fiscal Year, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(d) upon the reasonable request of the Administrative Agent, but not more than once per Fiscal Quarter, copies of any or all filings or registrations with, or notices or reports to, any regulatory authority by the Borrower or any Principal Subsidiary;
(e) as soon as possible and in any event (i) within 30 days after the Chief Financial Officer, Treasurer or any Assistant Treasurer of the Borrower knows or has reason to know that any ERISA Plan Termination Event described in clause (i) of the definition of ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (ii) within 10 days after the Borrower knows or has reason to know that any other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(f) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC’s intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $10,000,000 pursuant to Section 4202 of ERISA in respect of which the Borrower may be liable;
(h) promptly after the Borrower becomes aware of the commencement thereof, notice of all actions, suits, proceedings or other events of the type described in Section 6.01(g) (including, without limitation, any action or proceeding relating to any environmental protection laws or regulations);
(i) promptly after the filing thereof, copies of each prospectus (excluding any prospectus contained in any Form S-8), Current Report on Form 8-K and annual report on Form U5S (or such comparable form as the FERC may require following the repeal of PUHCA in February 2006), if any, which the Borrower or any Principal Subsidiary files with the Securities and Exchange Commission form 10Kor any successor governmental authority (or the FERC, if Tenant is lawfully required to file as the case may be); and
(j) promptly after requested, such a report). If any other information respecting the financial condition, operations, properties or prospects of the financial documentation required under Section 17.05 is not provided when requiredBorrower or its Subsidiaries as the Administrative Agent, and if Tenant fails or the Majority Lenders or Fronting Bank through the Administrative Agent, may from time to furnish the same to Landlord within fifteen (15) days of Landlord’s written time reasonably request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationwriting.
Appears in 1 contract
Samples: Credit Agreement (Western Massachusetts Electric Co)
Reporting Obligations. Unless Tenant (a) During any period in which the Company is a public companynot subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall deliver to the iStar Series E Representative and Tenant’s applicable quarterly the BREDS Series E Representative by mail and annual filings clearly set forth without cost to the information necessary Series E Holders the following reports in the form that the Company would have been required to determine whether Tenant meets the Financial Standard in connection file with the periodic determination SEC pursuant to Section 13 or Section 15(d) of whether Tenant meets the Financial StandardExchange Act as if the Company were subject thereto as well as the other documents listed herein:
(i) as soon as practicable, Tenant shall, upon request but in each instance by Landlord, furnish any event within the time frame prescribed for the filing of an annual report pursuant to Landlord the following: (x) within sixty (60) days Exchange Act after each the end of its first three fiscal quarters during each fiscal year of the Term Company, an annual report on Form 10-K, and to the extent not included in such Form 10-K, an income statement of the Company for such fiscal year, a balance sheet of the Company and statement of stockholders’ equity as of the end of such fiscal year, and a statement of cash flows for such fiscal year, such year-end financial reports to be prepared on a consolidated basis, in reasonable detail, prepared in accordance with GAAP, and audited and certified by independent public accountants of nationally recognized standing selected by the Company; and
(ii) as soon as practicable, but in any event within the time frame prescribed for the filing of a quarterly report pursuant to the Exchange Act for each fiscal quarter of each fiscal year of the Company, a quarterly report on Form 10-Q, and ninety to the extent not included in such Form 10-Q, an unaudited income statement and statement of cash flows for such fiscal quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter prepared on a consolidated basis.
(90b) The Company at its sole cost and expense shall furnish to the iStar Series E Representative and the BREDS Series E Representative (in each case, subject to the confidentiality provisions of the Purchase Agreement):
(i) as soon as practicable, but in any event at least 30 days prior to the end of each fiscal year, a budget for the next fiscal year, prepared on a monthly basis, including income statements, balance sheets, and statements of cash flows for such months, and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(ii) as soon as practicable, but in any event no later than 60 days after the fourth fiscal quarter during end of each fiscal calendar year) an unaudited financial statement of Tenant together , annual fair value statements, with a letter from the chief financial officer of Tenant statingDecember 31 year end, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided prepared in accordance with this Section 17.05. Unless public International Financial Reporting Standards; and (iii) as soon as practicable, any additional reports as may be reasonably requested by other means, Landlord will maintain confidential the iStar Series E Representative or the BREDS Series E Representative from time to time on behalf of any iStar Group Holder or BREDS Group Holder (as applicable) for the internal purposes of such statements, except as required by applicable law iStar Group Holder or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationBREDS Group Holder.
Appears in 1 contract
Samples: Corporate Governance (Landmark Apartment Trust of America, Inc.)
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid, and Tenant’s applicable quarterly and annual filings clearly set forth any Letter of Credit shall remain outstanding or any Lender shall have any Commitment, the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent (with sufficient copies for each Lender), the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, a consolidated balance sheet and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Borrower's quarterly report on Form 10-Q for such quarter), all in reasonable detail and ninety duly certified (90subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit E appropriately completed) of (1) the computations used by the Borrower in determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and the ratio set forth in Section 9.01(j), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth fiscal quarter during end of each fiscal year of the Borrower and its Subsidiaries, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and its Subsidiaries for such year, including therein a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year, accompanied by a report thereon of a nationally-recognized independent public accounting firm, together with (1) an unaudited a schedule in form satisfactory to the Required Lenders of (A) the computations used by such accounting firm in determining, as of the end of such fiscal year, compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and the ratio set forth in Section 9.01(j), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above, and (2) a certificate of the chief financial officer or chief accounting officer of the Borrower stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, a balance sheet and statements of income and retained earnings and of cash flows of the Borrower as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(f) as soon as available, a copy of the report by a nationally recognized independent public accounting firm on the consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2001, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for such fiscal year then ended;
(g) as soon as available, and in any event within ten (10) Business Days after the close of each calendar month, (i) month-end liquidity statements with respect to the Borrower and its consolidated Subsidiaries and (ii) updates to the monthly cash flow forecasts of the Borrower and its consolidated Subsidiaries, in each case in form and detail consistent with such statements and forecasts provided to the Lenders and the Agents prior to the Closing Date;
(h) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower and (B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower, a statement of Tenant together the chief financial officer or chief accounting officer of the Borrower describing such Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(i) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a letter trustee appointed to administer any Plan;
(j) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;
(k) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is reasonably expected to be liable;
(l) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 7.01(f);
(m) promptly after the sending or filing thereof, notice to the Administrative Agent and each Lender of any sending or filing of all proxy statements, financial statements and reports which the Borrower sends to its public security holders (if any), all regular, periodic and special reports which the Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by the Borrower or any of its Subsidiaries;
(n) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Borrower or any of its Subsidiaries is a party, which default would materially adversely affect the business, assets, property, financial condition, results of operations or prospects of the Borrower and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Borrower setting forth the details of such material default and the action which the Borrower or any such Subsidiary proposes to take with respect thereto; and
(o) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Borrower and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Required Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report)time reasonably request in writing. If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant The Borrower shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other meanshave fulfilled its obligations pursuant to clauses (b), Landlord will maintain confidential such statements(c), except as required by applicable law or Court order; however Landlord may provide information from such statements (d), (e), (g) and (m) above to Landlord’s accountantsthe extent the Administrative Agent (and the Lenders, lenders, attorneys and partners, as long as Landlord advises the recipients if applicable) receives an electronic copy of the existence requisite document or documents in a format acceptable to the Administrative Agent, provided that (1) an executed, tangible copy of Landlord’s confidentiality obligationany report required pursuant to clause (e) above is delivered to the Administrative Agent at the time of any such electronic delivery, and (2) a tangible copy of each requisite document delivered electronically is made available by the Borrower promptly upon request by any Agent or Lender.
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid or any Lender shall have any Commitment, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent (with sufficient copies for each Lender), the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, commencing with the fiscal quarter ending on March 31, 2003, a consolidated balance sheet and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Borrower's quarterly report on Form 10-Q for such quarter), all in reasonable detail and ninety duly certified (90subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit E appropriately completed) of (1) the computations used by the Borrower in determining compliance with the covenants contained in Sections 7.01(i) and 7.01(j) and the ratio set forth in Section 8.01(j), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth end of each fiscal year of the Borrower and its Subsidiaries, commencing with the fiscal year ending on December 31, 2003, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and its Subsidiaries for such year, including therein a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year, accompanied by a report thereon of a nationally-recognized independent public accounting firm, together with (1) a schedule in form satisfactory to the Required Lenders of (A) the computations used by such accounting firm in determining, as of the end of such fiscal year, compliance with the covenants contained in Sections 7.01(i) and 7.01(j) and the ratio set forth in Section 8.01(j), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above, and (2) a certificate of the chief financial officer or chief accounting officer of the Borrower stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, commencing with the fiscal quarter during ending on March 31, 2003, a balance sheet and statements of income and retained earnings and of cash flows of the Borrower as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2003, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year end audit adjustments) an unaudited by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(f) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower and (B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower, a statement of Tenant together the chief financial officer or chief accounting officer of the Borrower describing such Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(g) except as may arise in connection with the sale of Panhandle, promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a letter trustee appointed to administer any Plan;
(h) except as may arise in connection with the sale of Panhandle, promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;
(i) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is reasonably expected to be liable;
(j) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 6.01(f);
(k) promptly after the sending or filing thereof, notice to the Administrative Agent and each Lender of any sending or filing of all proxy statements, financial statements and reports which the Borrower sends to its public security holders (if any), all regular, periodic and special reports which the Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by the Borrower or any of its Subsidiaries;
(l) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Borrower or any of its Subsidiaries is a party, which default would materially adversely affect the business, assets, property, financial condition, results of operations or prospects of the Borrower and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Borrower setting forth the details of such material default and the action which the Borrower or any such Subsidiary proposes to take with respect thereto; and
(m) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Borrower and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Required Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report)time reasonably request in writing. If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant The Borrower shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other meanshave fulfilled its obligations pursuant to clauses (b), Landlord will maintain confidential such statements(c), except as required by applicable law or Court order; however Landlord may provide information from such statements (d), (e) and (k) above to Landlord’s accountantsthe extent the Administrative Agent (and the Lenders, lenders, attorneys and partners, as long as Landlord advises the recipients if applicable) receives an electronic copy of the existence requisite document or documents in a format reasonably acceptable to the Administrative Agent, provided that (1) an executed, tangible copy of Landlord’s confidentiality obligationany report required pursuant to clause (e) above is delivered to the Administrative Agent at the time of any such electronic delivery, and (2) a tangible copy of each requisite document delivered electronically is made available by the Borrower promptly upon request by any Agent or Lender.
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companyThe Guarantor covenants and agrees that, and Tenant’s applicable quarterly and annual filings clearly set forth so long as any part of the information necessary to determine whether Tenant meets Obligations shall remain unpaid, the Financial Standard Letter of Credit shall remain outstanding, or any Participating Bank shall have any Commitment, the Guarantor will, unless the Majority Banks shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish or cause to Landlord be furnished to the Administrative Agent in sufficient copies for the Issuing Bank and each Participating Bank, the following: :
(xi) as soon as possible and in any event within sixty ten (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9010) days after the fourth fiscal quarter during occurrence of each fiscal year) an unaudited financial Event of Default or Unmatured Default with respect to the Guarantor continuing on the date of such statement, a statement of Tenant together the Chief Financial Officer, Treasurer or Assistant Treasurer of the Guarantor setting forth details of such Event of Default or Unmatured Default and the action which the Guarantor proposes to take with a letter from respect thereto;
(A) as soon as available and in any event within fifty (50) days after the chief financial officer end of Tenant stating, to each of the best first three Fiscal Quarters of his or her knowledge, whether or not Tenant meets each Fiscal Year of the Financial Standard Guarantor:
(together with 1) a copy of the most recently filed United States Guarantor's Quarterly Report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter, or, if Tenant is lawfully the Guarantor ceases to be required to file submit such report, a reportconsolidated balance sheet of the Guarantor as of the end of such Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of the Guarantor for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Guarantor as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 6(f) hereof, and
(2) an unconsolidated balance sheet of the Guarantor as of the end of such Fiscal Quarter and unconsolidated statements of income and retained earnings and of cash flows of the Guarantor for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and accompanied by a certificate of a duly authorized officer of the Guarantor stating that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of financial statements referred to in Section 6(f) and (g) hereof; and
(B) concurrently therewith, a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Guarantor:
(1) stating that no Event of Default or Unmatured Default with respect to the Guarantor has occurred and is continuing or, if an Event of Default or Unmatured Default with respect to the Guarantor has occurred and is continuing, describing the nature thereof and the action which the Guarantor proposes to take with respect thereto, and
(2) demonstrating the Guarantor's compliance with Sections 8(d), 9(a), 9(b) and 9(c) hereof, for and as of the end of such Fiscal Quarter, in each case such demonstrations to be satisfactory (yin form) to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(iii) (A) as soon as available and in any event within one hundred fifty (150) 105 days after the end of each of Tenant’s fiscal years during the Term audited financial statements Fiscal Year of the Tenant for the prior fiscal year Guarantor:
(together with 1) a copy of the most recently filed United States Guarantor's report on Form 10-K submitted to the Securities and Exchange Commission form 10Kwith respect to such Fiscal Year, or, if Tenant is lawfully the Guarantor ceases to be required to file submit such report, a report). If any copy of the financial documentation required under Section 17.05 is not provided when requiredannual audit report for such year for the Guarantor including therein a consolidated balance sheet of the Guarantor as of the end of such Fiscal Year and consolidated statements of income and retained earnings and of cash flows of the Guarantor for such Fiscal Year, all in reasonable detail and if Tenant fails to furnish the same to Landlord certified by a nationally-recognized independent public accountant, and
(2) as soon as available and in any event within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business 135 days after receiving the end of each Fiscal Year of the Guarantor, a second written request from Landlord copy of the Guarantor's Form U5S submitted to the Securities and Exchange Commission (provided both or any successor form and in any event containing unconsolidated financial statements comparable to those referred to in Section 6(g) hereof) with respect to such year, accompanied by a certificate of such notices contain a prominent reference to this Section in bold print duly authorized officer of the Guarantor stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided were prepared in accordance with this generally accepted accounting principles consistent with those applied in the preparation of financial statements referred to in Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order6(f) and (g) hereof; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligation.and
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant Borrower shall, upon request unless the Majority Lenders shall otherwise consent in each instance by Landlordwriting, furnish to Landlord the Administrative Agent in sufficient copies for each Lender, the following: :
(xi) as soon as possible and in any event within sixty five (605) days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty (50) days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, (A) if and ninety (90) days after so long as the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, Borrower is required to submit to the best of his or her knowledgeSecurities and Exchange Commission a report on Form 10-Q, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter and (B) if the Borrower ceases to be required to submit such report, a balance sheet of the Borrower as of the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 6.01(e) hereof, in each such case, delivered together with a certificate of said officer (1) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully required continuing, a statement as to file the nature thereof and the action which the Borrower proposes to take with respect thereto and (2) (y) demonstrating compliance with Section 7.01(j) for and as of the end of such a reportfiscal quarter and compliance with Section 7.02(b), as of the dates on which any Debt was created, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), and (yz) demonstrating, after giving effect to the incurrence of any Debt created, incurred or assumed during such fiscal quarter (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), compliance with Section 7.01(j) for the remainder of the fiscal year of the Borrower based on the operating budget/forecast of operations delivered pursuant to Section 7.03(iv) hereof for such fiscal year, in each case, such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within one hundred fifty (150) 105 days after the end of each of Tenant’s fiscal years during the Term audited financial statements year of the Tenant for Borrower, (A) if and so long as the prior fiscal year (together with Borrower is required to submit to the Securities and Exchange Commission a report on Form 10-K, a copy of the most recently filed United States Borrower's report on Form 10-K submitted to the Securities and Exchange Commission form 10K, with respect to such year and (B) if Tenant is lawfully the Borrower ceases to be required to file submit such report, a report). If any copy of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish annual audit report for such year for the same to Landlord within fifteen (15) days Borrower including therein a balance sheet of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both the Borrower as of the end of such notices contain fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, in each case certified by a prominent reference to this Section nationally-recognized independent public accountant, in bold print each such case delivered together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer (A) (1) stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided were prepared in accordance with this generally accepted accounting principles consistent with those applied in the preparation of financial statements referred to in Section 17.05. Unless public by other means6.01(e) hereto, Landlord will maintain confidential and (2) no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (B) demonstrating compliance with Section 7.01(j) for and as of the end of such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys fiscal year and partnerscompliance with Section 7.02(b), as long as Landlord advises the recipients of the existence dates on which any Debt was created, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Landlord’s confidentiality obligationDebt referred to in clause (ix) in the definition of "Debt"), such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance.
Appears in 1 contract
Samples: Revolving Credit Agreement (North Atlantic Energy Corp /Nh)
Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant Borrower shall, upon request unless the Majority shall otherwise consent in each instance by Landlordwriting, furnish to Landlord the Administrative Agent in sufficient copies for each Lender, the following: :
(xi) as soon as possible and in any event within sixty five (605) days after the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Default or Event of Default and the action which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty (50) days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, (A) if and ninety (90) days after so long as the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, Borrower is required to submit to the best of his or her knowledgeSecurities and Exchange Commission a report on Form 10-Q, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter and (B) if the Borrower ceases to be required to submit such report, a balance sheet of the Borrower as of the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 6.1(e) hereof, in each such case, delivered together with a certificate of said officer (1) stating that no Default or Event of Default has occurred and is continuing or, if Tenant a Default or Event of Default has occurred and is lawfully required continuing, a statement as to file the nature and the action which the Borrower proposes to take with respect thereto and (2) (y) demonstrating compliance with Section 7.1(j) for and as of the end of such a reportfiscal quarter and compliance with Section 7.2(b), as of the dates on which any Debt was created, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), and (yz) demonstrating, after giving effect to the incurrence of any Debt created, incurred or assumed during such fiscal quarter (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt"), compliance with Section 7.1(j) for the remainder of the fiscal year of the Borrower based on the operating budget/forecast of operations delivered pursuant to Section 7.3(iv) hereof for such fiscal year, in each case, such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within one hundred fifty (150) 105 days after the end of each of Tenant’s fiscal years during the Term audited financial statements year of the Tenant for Borrower, (A) if and so long as the prior fiscal year (together with Borrower is required to submit to the Securities and Exchange Commission a report on Form 10-K, a copy of the most recently filed United States Borrower's report on Form 10-K submitted to the Securities and Exchange Commission with respect to such year and (B) if the Borrower ceases to be required to submit such report, a copy of the annual audit report for such year for the Borrower including therein a balance sheet of the Borrower as of the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, in each case certified by a nationally-recognized independent public accountant, in each such case delivered together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer (A) (1) stating that the financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of financial statements referred to in Section 6.1(e) hereto, and (2) no Default or Event of Default has occurred and is continuing, or if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (B) demonstrating compliance with Section 7.1(j) for and as of the end of such fiscal year and compliance with Section 7.2(b), as of the dates on which any Debt was created, incurred or assumed (using the Borrower's most recent annual actuarial determina-tions in the computation of Debt referred to in clause (ix) in the definition of "Debt"), such demonstration to be in a schedule (in form 10Ksatisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance.
(iv) as soon as available and in any event before March 31 of each fiscal year a copy of an operating budget/forecast of operations of the Borrower as approved by the Board of Directors of the Borrower in form satisfactory to the Lenders for the next fiscal year of the Borrower, together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower stating that such budget/forecast was prepared in good faith and on reasonable assumptions;
(v) as soon as available and in any event no later than the New Hampshire Public Utilities Commission shall have received the Borrower's annual submission, if Tenant any, relating to the "return on equity collar"' referred to in the Rate Agreement, a copy of such annual submission of the Borrower;
(vi) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any ERISA Event described in clause (i) of the definition of ERISA Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (B) within 10 days after the Borrower knows or has reason to know that any other ERISA Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Event and the action, if any, which the Borrower proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(viii) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each ERISA Plan (if any) to which the Borrower is lawfully required a contributing employer;
(ix) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $10,000,000 pursuant to file such a reportSection 4202 of ERISA in respect of which the Borrower may be liable;
(x) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events (A) of the type described in Section 6.1(f). If , or (B) which purport to affect the legality, validity or enforceability of any of the Loan Documents, the Rate Agreement, any Transaction Document or Significant Contracts;
(xi) promptly after the sending or filing thereof, copies of all such proxy statements, financial documentation required under Section 17.05 is not provided when requiredstatements, and reports which the Borrower sends to its public security holders (if Tenant fails to furnish any) or files with, and copies of all regular, periodic and special reports and all registration statements and periodic or special reports, if any, which the same to Landlord within fifteen (15) days of Landlord’s written request Borrower files with, the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange;
(xii) promptly after receipt thereof, any assertion of the character described in Section 8.1(h) hereof and if Tenant has not cured such failure within five the action the Borrower proposes to take with respect thereto;
(5xiii) business days promptly after receiving a second written request from Landlord (provided both knowledge of any material default under the Rate Agreement or any Significant Contract, notice of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cashaction the Borrower proposes to take with respect thereto;
(xiv) promptly after knowledge of any amendment, cash equivalent and marketable securities modification, or other change to the Rate Agreement or any Significant Contract or to any Governmental Approval affecting the Rate Agreement, notice of such amendment, modification or other change, it being understood that for purposes of this clause (xiv) any filing by the Borrower in the ordinary course of the Tenant shall be deemed Borrower's business with, or order issued or action taken by, a governmental authority or regulatory body to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises implement the recipients terms of the existence Rate Agreement shall not be considered an amendment, modification or change to a Governmental Approval affecting the Rate Agreement;
(xv) promptly after requested, such other information respecting the financial condition, operations, properties, prospects or otherwise, of Landlord’s confidentiality obligationthe Borrower as the Administrative Agent or Majority Lenders may from time to time reasonably request in writing; and
(xvi) not later than ten days following the end of each fiscal quarter of the Borrower, a report on the progress of and developments in the Rate Proceeding, the Final Plan and any negotiations concerning the foregoing.
Appears in 1 contract
Samples: Revolving Credit Agreement (North Atlantic Energy Corp /Nh)
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured continuing on the date of such statement, a public companystatement of the Default Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action that the Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Q, if Tenant is lawfully required pursuant to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Kwith respect to such quarter, if Tenant and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is lawfully not required to, or ceases to be required to file submit such a report). If any , consolidated balance sheets of, Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, as of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both end of such notices contain a prominent reference to this Section in bold print stating that Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of such Person for the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and period commencing at the unrestricted cash, cash equivalent and marketable securities end of the Tenant shall be deemed previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to be zero until financial statements are provided year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises generally accepted accounting principles consistent with those applied in the recipients preparation of the existence of Landlord’s confidentiality obligation.Financial Statements; and
Appears in 1 contract
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action that the Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Q, if Tenant is lawfully required pursuant to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Kwith respect to such quarter, if Tenant and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is lawfully not required to, or ceases to be required to file submit such a report). If any , consolidated balance sheets of, Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, as of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both end of such notices contain a prominent reference to this Section in bold print stating that Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of such Person for the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and period commencing at the unrestricted cash, cash equivalent and marketable securities end of the Tenant shall be deemed previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to be zero until financial statements are provided year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises generally accepted accounting principles consistent with those applied in the recipients preparation of the existence of Landlord’s confidentiality obligation.Financial Statements; and
Appears in 1 contract
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Q, if Tenant is lawfully required pursuant to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Kwith respect to such quarter, if Tenant and, with respect to Yankee, Select Energy, Inc. and any other Principal Subsidiary that is lawfully not required to, or ceases to be required to file submit such a report). If any , consolidated and unconsolidated balance sheets of, Yankee, Select Energy, Inc. and such other Principal Subsidiary, as of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both end of such notices contain a prominent reference to this Section in bold print stating that Fiscal Quarter and consolidated and unconsolidated statements of income and retained earnings and of cash flows of such Person for the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and period commencing at the unrestricted cash, cash equivalent and marketable securities end of the Tenant shall be deemed previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to be zero until financial statements are provided year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises generally accepted accounting principles consistent with those applied in the recipients preparation of the existence of Landlord’s confidentiality obligation.Financial Statements; and
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Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Majority Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent in sufficient copies for each Lender, the following: :
(xi) as soon as possible and in any event within sixty five (605) days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty (50) days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, (A) if and ninety (90) days after so long as the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, Borrower is required to submit to the best of his or her knowledgeSecurities and Exchange Commission a report on Form 10-Q, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter and (B) if the Borrower ceases to be required to submit such report, a balance sheet of the Borrower as of the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles, in each such case, delivered together with a certificate of said officer (X) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (Y) demonstrating compliance with Section 7.01(j) for and as of the end of such fiscal quarter and compliance with Section 7.02(b) as of the dates on which any Debt was created, issued, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt") during such quarter and as of the end of such fiscal quarter, such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within 105 days after the end of each fiscal year of the Borrower, (A) if and so long as the Borrower is required to file such submit to the Securities and Exchange Commission a report)report on Form 10- K, and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Borrower's report on Form 10-K submitted to the Securities and Exchange Commission form 10Kwith respect to such year and (B) in any case, if Tenant is lawfully required to file such a report). If any copy of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish annual report for such year for the same to Landlord within fifteen (15) days Borrower including therein an audited balance sheet of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both the Borrower as of the end of such notices contain fiscal year and audited statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, in each case certified by a prominent reference to this Section in bold print nationally-recognized independent public accountant and delivered with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer (X) stating that no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, a statement as to the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease nature thereof and the unrestricted cash, cash equivalent action which the Borrower proposes to take with respect thereto and marketable securities (Y) demonstrating compliance with Section 7.01(j) for and as of the Tenant shall be deemed to be zero until financial statements are provided in accordance end of such fiscal year and compliance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligation.Sections 7.02
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Reporting Obligations. Unless Tenant is So long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(xviii) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(A) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter, or, if Tenant is lawfully the Borrower or Select Energy, Inc. ceases to be required to file submit such a report, consolidated and unconsolidated balance sheets of the Borrower or Select Energy, Inc., as the case may be, as of the end of such Fiscal Quarter and consolidated and unconsolidated statements of income and retained earnings and of cash flows of the Borrower or Select Energy, Inc., as the case may be, for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower or Select Energy, Inc., as the case may be, as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements; and
(B) concurrently with the delivery of the financial statements described in the foregoing clause (a), a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(1) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements,
(2) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if an Event of Default or Unmatured Default has occurred and is continuing, describing the nature thereof and the action which the Borrower proposes to take with respect thereto, and
(y3) demonstrating the Borrower's compliance with the covenants set forth in Section 7.03 hereof, for and as of the end of such Fiscal Quarter, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(xx) (A) as soon as available, and in any event within one hundred fifty (150) 105 days after the end of each of Tenant’s fiscal years during the Term audited financial statements Fiscal Year of the Tenant for the prior fiscal year (together with Borrower, a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Annual Reports on Form 10-K submitted to the Securities and Exchange Commission form 10Kwith respect to such Fiscal Year, or, if Tenant is lawfully the Borrower or Select Energy, Inc. ceases to be required to file submit such report, a report). If any copy of the financial documentation required under Section 17.05 is not provided when requiredannual audit report for such year for the Borrower or Select Energy, Inc., as the case may be, including therein consolidated and if Tenant fails to furnish unconsolidated balance sheets of the same to Landlord within fifteen (15) days Borrower or Select Energy, Inc., as the case may be, as of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both the end of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial Fiscal Year and consolidated and unconsolidated statements shall result in a default under this Lease), then Tenant shall be in default under this Lease of income and the unrestricted cash, retained earnings and of cash equivalent and marketable securities flows of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other meansBorrower or Select Energy, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partnersInc., as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligation.case may be, for such Fiscal Year, all in reasonable detail and certified by a nationally-recognized independent public accountant; and
Appears in 1 contract
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(a) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action that the Borrower proposes to take with respect thereto;
(1) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower’s and each of its Principal Subsidiary’s Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Q, if Tenant is lawfully required pursuant to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Kwith respect to such quarter, if Tenant and, with respect to Yankee and any other Principal Subsidiary that is lawfully not required to, or ceases to be required to file submit such a report). If any , consolidated balance sheets of Yankee and such other Principal Subsidiary, as of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both end of such notices contain a prominent reference to this Section in bold print stating that Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of such Person for the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and period commencing at the unrestricted cash, cash equivalent and marketable securities end of the Tenant shall be deemed previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to be zero until financial statements are provided year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises generally accepted accounting principles consistent with those applied in the recipients preparation of the existence of Landlord’s confidentiality obligation.Financial Statements; and
Appears in 1 contract
Samples: Credit Agreement (Public Service Co of New Hampshire)
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid, and Tenant’s applicable quarterly and annual filings clearly set forth any Letter of Credit shall remain outstanding or any Lender shall have any Commitment, the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent (with sufficient copies for each Lender), the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Borrower's quarterly report on Form 10-Q for such quarter), all in reasonable detail and ninety duly certified (90subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit F appropriately completed) of (1) the computations used by the Borrower in determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 9.01(k), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth fiscal quarter during end of each fiscal year of the Borrower and its Subsidiaries, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and its Subsidiaries for such year) an unaudited financial statement , including therein a consolidated balance sheet of Tenant the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year, accompanied by a report thereon of Arthxx Xxxexxxx XXX or another nationally-recognized independent public accounting firm, together with a letter schedule in form satisfactory to the Required Lenders of (A) the computations used by such accounting firm in determining, as of the end such fiscal year, compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 9.01(k), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(f) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower and (B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower, a statement of the chief financial officer or chief accounting officer of the Borrower describing such Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan;
(h) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;
(i) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is reasonably expected to be liable;
(j) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 7.01(f);
(k) promptly after the sending or filing thereof, notice to the Administrative Agent and each Lender of any sending or filing of all proxy statements, financial statements and reports which the Borrower sends to its public security holders (if any), all regular, periodic and special reports which the Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by the Borrower or any of its Subsidiaries;
(l) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Borrower or any of its Subsidiaries is a party, which default would materially adversely affect the financial condition, business, results of operations or property of the Borrower and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Borrower setting forth the details of such material default and the action which the Borrower or any such Subsidiary proposes to take with respect thereto; and
(m) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Borrower and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Required Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report)time reasonably request in writing. If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant The Borrower shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other meanshave fulfilled its obligations pursuant to clauses (b), Landlord will maintain confidential such statements(c), except as required by applicable law or Court order; however Landlord may provide information from such statements (d), (e) and (k) above to Landlord’s accountantsthe extent the Administrative Agent (and the Lenders, lenders, attorneys and partners, as long as Landlord advises the recipients if applicable) receives an electronic copy of the existence requisite document or documents in a format acceptable to the Administrative Agent, provided that (1) an executed, tangible copy of Landlord’s confidentiality obligationany report required pursuant to clause (e) above is delivered to the Administrative Agent at the time of any such electronic delivery, and (2) a tangible copy of each requisite document delivered electronically is made available by the Borrower promptly upon request by any Agent or Lender.
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid or any Lender shall have any Commitment, and Tenant’s applicable quarterly and annual filings clearly set forth CMS Energy will, unless the information necessary to determine whether Tenant meets the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent (with sufficient copies for each Lender), the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three quarters of each fiscal year of CMS Energy, a consolidated balance sheet and consolidated statements of income and retained earnings and of cash flows of CMS Energy and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of CMS Energy's quarterly report on Form 10-Q for such quarter), all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of CMS Energy as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit E appropriately completed) of (1) the computations used by CMS Energy in determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and the ratio set forth in Section 9.01(i), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with CMS Energy's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of CMS Energy of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that CMS Energy proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the end of each fiscal year of CMS Energy and its Subsidiaries, a copy of the Annual Report on Form 10-K (or any successor form) for CMS Energy and its Subsidiaries for such year, including therein a consolidated balance sheet of CMS Energy and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of CMS Energy and its Subsidiaries for such fiscal year, accompanied by a report thereon of a nationally-recognized independent public accounting firm, together with (1) a schedule in form satisfactory to the Required Lenders of (A) the computations used by such accounting firm in determining, as of the end of such fiscal year, compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and the ratio set forth in Section 9.01(i), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with CMS Energy's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of CMS Energy of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above, and (2) a certificate of the chief financial officer or chief accounting officer of CMS Energy stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that CMS Energy proposes to take with respect thereto;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters during of each fiscal year of CMS Energy, a balance sheet and statements of income and retained earnings and of cash flows of CMS Energy as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of CMS Energy as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of CMS Energy, a balance sheet of CMS Energy as at the end of such fiscal year and statements of income and retained earnings and of cash flows of CMS Energy for such fiscal year, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of CMS Energy as having been prepared in accordance with GAAP;
(f) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Term Borrower, a balance sheet and statements of income and retained earnings and of cash flows of the Borrower as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(g) as soon as available and ninety (90) in any event within 120 days after the fourth fiscal quarter during end of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year-end audit adjustments) an unaudited by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(h) as soon as available, a copy of the report by a nationally-recognized independent public accounting firm on the consolidated balance sheet of CMS Energy and its Subsidiaries as at December 31, 2001, and the related consolidated statements of income, retained earnings and cash flows of CMS Energy and its Subsidiaries for such fiscal year then ended;
(i) as soon as available, and in any event within ten (10) Business Days after the close of each calendar month, (i) month-end liquidity statements with respect to CMS Energy and its consolidated Subsidiaries and (ii) updates to the monthly cash flow forecasts of CMS Energy and its consolidated Subsidiaries, in each case in form and detail consistent with such statements and forecasts provided to the Lenders and the Agents prior to the Closing Date;
(j) as soon as possible and in any event (A) within 30 days after CMS Energy knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of CMS Energy or any ERISA Affiliate of CMS Energy has occurred and could reasonably be expected to result in a material liability to CMS Energy and (B) within 10 days after CMS Energy knows or has reason to know that any other Plan Termination Event with respect to any Plan of CMS Energy or any ERISA Affiliate of CMS Energy has occurred and could reasonably be expected to result in a material liability to CMS Energy, a statement of Tenant together the chief financial officer or chief accounting officer of CMS Energy describing such Plan Termination Event and the action, if any, which CMS Energy proposes to take with respect thereto;
(k) promptly after receipt thereof by CMS Energy or any of its ERISA Affiliates from the PBGC copies of each notice received by CMS Energy or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a letter trustee appointed to administer any Plan;
(l) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which CMS Energy is a contributing employer;
(m) promptly after receipt thereof by CMS Energy or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by CMS Energy or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which CMS Energy is reasonably expected to be liable;
(n) promptly after CMS Energy becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 7.01(f);
(o) promptly after the sending or filing thereof, notice to the Administrative Agent and each Lender of any sending or filing of all proxy statements, financial statements and reports which CMS Energy sends to its public security holders (if any), all regular, periodic and special reports which CMS Energy files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by CMS Energy or any of its Subsidiaries;
(p) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which CMS Energy or any of its Subsidiaries is a party, which default would materially adversely affect the business, assets, property, financial condition, results of operations or prospects of CMS Energy and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant stating, to CMS Energy setting forth the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both details of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a material default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cashaction which CMS Energy or any such Subsidiary proposes to take with respect thereto; and
(q) promptly after requested, cash equivalent such other information respecting the business, properties, condition or operations, financial or otherwise, of CMS Energy and marketable securities of its Subsidiaries as any Agent or the Tenant Required Lenders may from time to time reasonably request in writing. The Borrower and CMS Energy, as applicable, shall be deemed to be zero until financial statements are have fulfilled its obligations pursuant to clauses (b), (c), (d), (e), (f), (g), (i) and (o) above to the extent the Administrative Agent (and the Lenders, if applicable) receives an electronic copy of the requisite document or documents in a format acceptable to the Administrative Agent, provided in accordance with this Section 17.05. Unless public that (1) an executed, tangible copy of any report required pursuant to clause (e) above is delivered to the Administrative Agent at the time of any such electronic delivery, and (2) a tangible copy of each requisite document delivered electronically is made available by other means, Landlord will maintain confidential such statements, except as required by applicable law the Borrower or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partnersCMS Energy, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationapplicable, promptly upon request by any Agent or Lender.
Appears in 1 contract
Reporting Obligations. Unless Tenant is Post on a public companyconfidential website (access to which shall require signature on a non-negotiable customary confidentiality agreement established on such website as a condition to access thereof (the “CA”)) the following information, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection not file it with the periodic determination SEC, unless subject to the reporting requirements of whether Tenant meets Section 13 or 15(d) of the Financial StandardExchange Act: -within 100 days of the end of the fiscal year, Tenant shall, upon request in each instance by Landlord, furnish to Landlord audited year end financial statements of the following: (x) within sixty (60) issuer and its subsidiaries and an MD&A -within 50 days after of the end of each of its the first three fiscal quarters during each fiscal year quarters, unaudited quarterly financial statements of the Term issuer and its subsidiaries and an MD&A -within 5 business days of the occurrence of the following events: · change in the executive officers or directors of the issuer; · any incurrence of any material long-term debt; · acceleration of any indebtedness of the issuer or any of its restricted subsidiaries; · any issuance by the issuer of its equity interests (excluding pursuant to any equity incentive plan in the ordinary course of business) generating net cash proceeds greater than $10 million; · entry into an agreement by the issuer or any of its subsidiaries relating to a transaction that has or may result in a change of control; · any resignation or termination of the issuer’s independent accountants or any new engagement of independent accountants; · any determination by the issuer or the receipt of advice or notice by the issuer from its independent accountants relating to non-reliance on previously issued financial statements, a related audit opinion or a completed interim review; and ninety (90) days after · the fourth fiscal quarter during completion by the issuer and any of its restricted subsidiaries of the acquisition or disposition of a significant amount of assets, in each fiscal year) case, solely to the extent such information would be required to be filed on a Form 8-K by an unaudited SEC registrant; provided there shall be no obligation to provide financial statement or pro forma financial statements with respect to a business acquired or disposed of. The Company will provide any prospective purchaser of Tenant together New Second Lien Notes or New Senior Notes identified by an existing noteholder with a letter from the chief financial officer of Tenant stating, access to the best website if such prospective purchaser agrees to be bound by the CA. Upon written request of his any holder of New Second Lien Notes or her knowledgeNew Senior Notes (which request may be by electronic mail), whether or not Tenant meets the Financial Standard (together with Company shall, subject to execution of a CA, provide a copy of the most recently filed United States Securities Budget (as defined below) to such noteholder; provided, however, that the Company will not be obligated to comply with any such request if it reasonably determines, in good faith, that such noteholder is a competitor of the Company; provided further, however, the Company shall not have an obligation to update any Budget previously provided to a noteholder. The Budget shall be a summary budget prepared once a year, consisting of annual sales, adjusted EBITDA, and Exchange Commission form 10Qfree cash flow. For avoidance of doubt, if Tenant is lawfully the Budget shall not be required to file such a reportbe posted on any website maintained by the Company. Parties: Xxxxxx Holdings, Inc. (following the Restructuring) (the “Company”), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year Avenue Capital Management II, LP (together with a copy its affiliates, the “Avenue Shareholder”), [Goldman Shareholders] (together with their affiliates, the “Goldman Shareholder”), [TCW Shareholders] (together with their affiliates, the “TCW Shareholder” and, together with the Goldman Shareholder, the “ACGN Shareholders”) and Holders of 5% of more of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any post-restructuring common stock of the financial documentation required under Section 17.05 Company. The Avenue Shareholder, the Goldman Shareholder, the TCW Shareholder and any other shareholders that become parties to the Shareholders Agreement after the Effective Date, are referred to herein as a “Stockholder” and together, the “Stockholders”. Additional Parties: The Company may require that any person that is not provided when requiredoffered shares of New Common Stock (“Common Stock”), and if Tenant fails options to furnish purchase Common Stock or other equity interests that are convertible into or exchangeable for Common Stock become, as a condition to the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both acquisition of such notices contain shares, options or other equity interests, a prominent reference party to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant Shareholders Agreement and become bound by all of the restrictions therein. All Stockholders (other than the Avenue Shareholder) shall be in default under this Lease and referred to herein as the unrestricted cash, cash equivalent and marketable securities “Other Stockholders.” Stock Covered by Agreement All Common Stock of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public Company owned or acquired from and after the Effective Date by (i) the Stockholders, (ii) any member of management who acquires stock through the exercise of options acquired on or after the Effective Date (the “Management Stockholders”) and (iii) any other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients shareholder of the existence Company that becomes a party to the Shareholders Agreement following the Effective Date. All transferees acquiring Common Stock from a Stockholder shall execute a joinder to the Shareholders Agreement as a condition to the effectiveness of Landlord’s confidentiality obligationsuch acquisition.
Appears in 1 contract
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter, or, if Tenant is lawfully the Borrower or Select Energy, Inc. ceases to be required to file submit such a report), consolidated and (y) within one hundred fifty (150) days after each unconsolidated balance sheets of Tenant’s fiscal years during the Term audited financial Borrower or Select Energy, Inc., as the case may be, as of the end of such Fiscal Quarter and consolidated and unconsolidated statements of income and retained earnings and of cash flows of the Tenant Borrower or Select Energy, Inc., as the case may be, for the prior fiscal year (together with a copy period commencing at the end of the most recently filed United States Securities previous Fiscal Year and Exchange Commission form 10Kending with the end of such Fiscal Quarter, if Tenant is lawfully required all in reasonable detail and duly certified (subject to file such a report). If any year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the financial documentation required under Section 17.05 is not provided when requiredBorrower or Select Energy, and if Tenant fails to furnish Inc., as the same to Landlord within fifteen (15) days of Landlord’s written request thereforcase may be, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided as having been prepared in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises generally accepted accounting principles consistent with those applied in the recipients preparation of the existence of Landlord’s confidentiality obligation.Financial Statements; and
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Majority Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord each Lender, the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Unmatured Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Unmatured Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Borrower's quarterly report on Form 10-Q for such quarter), all in reasonable detail and ninety duly certified (90subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit F appropriately completed) of (1) the computations used by the Borrower in determining compliance with the covenants contained in Sections 7.01(i) and 7.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 8.01(i), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Unmatured Default or Event of Default has occurred and is continuing or, if an Unmatured Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth fiscal quarter during end of each fiscal year of the Borrower and its Subsidiaries, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and its Subsidiaries for such year) an unaudited financial statement , including therein a consolidated balance sheet of Tenant the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year, accompanied by a report thereon of Xxxxxx Xxxxxxxx & Co. or another nationally-recognized independent public accounting firm, together with a letter schedule in form satisfactory to the Majority Lenders of (A) the computations used by such accounting firm in determining, as of the end such fiscal year, compliance with the covenants contained in Sections 7.01(i) and 7.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 8.01(k), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(f) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower and (B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower, a statement of the chief financial officer or chief accounting officer of the Borrower describing such Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan;
(h) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;
(i) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is reasonably expected to be liable;
(j) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 6.01(f);
(k) promptly after the sending or filing thereof, copies of all proxy statements, financial statements and reports which the Borrower sends to its public security holders (if any), copies of all regular, periodic and special reports which the Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and copies of all final prospectuses with respect to any securities issued or to be issued by the Borrower or any of its Subsidiaries;
(l) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Borrower or any of its Subsidiaries is a party, which default would materially adversely affect the financial condition, business, results of operations or property of the Borrower and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Borrower setting forth the details of such material default and the action which the Borrower or any such Subsidiary proposes to take with respect thereto; and
(m) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Borrower and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Majority Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written time reasonably request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationwriting.
Appears in 1 contract
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(a) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action that the Borrower proposes to take with respect thereto;
(i) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower’s and each of its Principal Subsidiary’s Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Qpursuant to Sections 13 or 15 of the U.S. Securities Exchange Act of 1934, as amended) submitted to the Securities and Exchange Commission with respect to such quarter, and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is not required to, or ceases to be required to submit such report, consolidated balance sheets of, Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, as of the end of such Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of such Person for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements; and
(ii) concurrently with the delivery of the financial statements described in clause (i) above, a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(A) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements,
(B) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully continuing, describing the nature thereof and the action that the Borrower proposes to take with respect thereto, and
(C) demonstrating the Borrower’s compliance with the covenants set forth in Section 7.03 hereof, for and as of the end of such Fiscal Quarter, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(i) as soon as available, and in any event within 105 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s and each of its Principal Subsidiary’s Annual Reports on Form 10-K (if such Principal Subsidiary is required to file such a report), report with the U.S. Securities and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Exchange Commission pursuant to Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together Securities and Exchange Commission with respect to such Fiscal Year, and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is not required to, or ceases to be required to submit such report, a copy of the most recently annual audit report for such year for Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, including therein consolidated balance sheets of such Person as of the end of such Fiscal Year and consolidated statements of income and retained earnings and of cash flows of such Person, for such Fiscal Year, all in reasonable detail and certified by a nationally-recognized independent public accountant; and
(ii) concurrently with the delivery of the financial statements described in clause (i) above, a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(A) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements, and
(B) stating that no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, describing the nature thereof and the action that the Borrower proposes to take with respect thereto, and
(C) demonstrating the Borrower’s compliance with the covenants set forth in Section 7.03 hereof, for and as of the end of such Fiscal Year, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(d) upon the reasonable request of the Administrative Agent, but not more than once per Fiscal Quarter, copies of any or all filings or registrations with, or notices or reports to, any regulatory authority by the Borrower or any Principal Subsidiary;
(e) as soon as possible and in any event (i) within 30 days after the Chief Financial Officer, Treasurer or any Assistant Treasurer of the Borrower knows or has reason to know that any ERISA Plan Termination Event described in clause (i) of the definition of “ERISA Plan Termination Event” with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (ii) within 10 days after the Borrower knows or has reason to know that any other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(f) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC’s intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $10,000,000 pursuant to Section 4202 of ERISA in respect of which the Borrower may be liable;
(h) promptly after the Borrower becomes aware of the commencement thereof, notice of all actions, suits, proceedings or other events of the type described in Section 6.01(g) hereof (including, without limitation, any action or proceeding relating to any environmental protection laws or regulations);
(i) promptly after the filing thereof, copies of each prospectus (excluding any prospectus contained in any Form S-8), Current Report on Form 8-K and annual report on Form U5S (or such comparable form as may be required to be filed United States with any regulatory authority under the Public Utility Holding Company Act of 2005 and other statutes administered by the FERC following the repeal of PUHCA in February 2006), if any, which the Borrower or any Principal Subsidiary files with the Securities and Exchange Commission form 10Kor any successor governmental authority; and
(j) promptly after requested, if Tenant is lawfully required to file such a report). If any other information respecting the financial condition, operations, properties or prospects of the financial documentation required under Section 17.05 is not provided when requiredBorrower or its Subsidiaries as the Administrative Agent, and if Tenant fails or the Majority Lenders or Fronting Bank through the Administrative Agent, may from time to furnish the same to Landlord within fifteen (15) days of Landlord’s written time reasonably request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationwriting.
Appears in 1 contract
Reporting Obligations. Unless Tenant (a) During any period in which the General Partner is a public companynot subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the General Partner shall deliver to the iStar Representative and the BREDS Representative by mail and without cost to the Series D Unitholders the following reports in the form that the General Partner would have been required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act as if the General Partner were subject thereto as well as the other documents listed herein:
(i) as soon as practicable, but in any event within the time frame prescribed for the filing of an annual report pursuant to the Exchange Act after the end of each fiscal year, an annual report on Form 10-K, and Tenant’s applicable to the extent not included in such Form 10-K, an income statement of the General Partner for such fiscal year, a balance sheet of the General Partner and statement of stockholders’ equity as of the end of such fiscal year, and a statement of cash flows for such fiscal year, such year-end financial reports to be prepared on a consolidated basis, in reasonable detail, prepared in accordance with GAAP, and audited and certified by independent public accountants of nationally recognized standing selected by the General Partner; and
(ii) as soon as practicable, but in any event within the time frame prescribed for the filing of a quarterly and annual filings clearly set forth report pursuant to the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination Exchange Act for each fiscal quarter of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term General Partner, a quarterly report on Form 10-Q, and to the extent not included in such Form 10-Q, an unaudited income statement and statement of cash flows for such fiscal quarter and an unaudited balance sheet and a statement of stockholder’s equity as of the end of such fiscal quarter prepared on a consolidated basis.
(b) The General Partner at its sole cost and ninety expense shall furnish to the iStar Representative and the BREDS Representative (90in each case, subject to the confidentiality provisions of the Securities Purchase Agreement):
(i) as soon as practicable, but in any event at least 30 days prior to the end of each fiscal year, a budget for the next fiscal year, prepared on a monthly basis, including income statements, balance sheets, and statements of cash flows for such months, and, as soon as prepared, any other budgets or revised budgets prepared by the General Partner;
(ii) as soon as practicable, but in any event no later than 60 days after the fourth fiscal quarter during end of each fiscal calendar year) an unaudited financial statement of Tenant together , annual fair value statements, with a letter from the chief financial officer of Tenant statingDecember 31 year end, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided prepared in accordance with this Section 17.05. Unless public International Financial Reporting Standards; and
(iii) as soon as practicable, any additional reports as may be reasonably requested by other means, Landlord will maintain confidential the iStar Representative or the BREDS Representative from time to time on behalf of any iStar Group Holder or BREDS Group Holder (as applicable) for the internal purposes of such statements, except as required by applicable law iStar Group Holder or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationBREDS Group Holder.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Landmark Apartment Trust of America, Inc.)
Reporting Obligations. Unless Tenant is a public companySo long as any Note shall remain unpaid or any Lender shall have any Commitment hereunder, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Majority Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent in sufficient copies for each Lender, the following: :
(xi) as soon as possible and in any event within sixty five (605) days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty (50) days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, (A) if and ninety (90) days after so long as the fourth fiscal quarter during each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer of Tenant stating, Borrower is required to submit to the best of his or her knowledgeSecurities and Exchange Commission a report on Form 10-Q, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's report on Form 10-Q submitted to the Securities and Exchange Commission form 10Qwith respect to such quarter and (B) if the Borrower ceases to be required to submit such report, a balance sheet of the Borrower as of the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles, in each such case, delivered together with a certificate of said officer (X) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (Y) demonstrating compliance with Section 7.01(j) for and as of the end of such fiscal quarter and compliance with Section 7.02(b) as of the dates on which any Debt was created, issued, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (ix) in the definition of "Debt") during such quarter and as of the end of such fiscal quarter, such demonstration to be in a schedule (in form satisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within 105 days after the end of each fiscal year of the Borrower, (A) if and so long as the Borrower is required to file such submit to the Securities and Exchange Commission a report)report on Form 10- K, and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Borrower's report on Form 10-K submitted to the Securities and Exchange Commission with respect to such year and (B) in any case, a copy of the annual report for such year for the Borrower including therein an audited balance sheet of the Borrower as of the end of such fiscal year and audited statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, in each case certified by a nationally-recognized independent public accountant and delivered with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer (X) stating that no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, a statement as to the nature thereof and the action which the Borrower proposes to take with respect thereto and (Y) demonstrating compliance with Section 7.01(j) for and as of the end of such fiscal year and compliance with Section 7.02(b) as of the dates on which any Debt was created, issued, incurred or assumed (using the Borrower's most recent annual actuarial determinations in the computation of Debt referred to in clause (viii) of the definition of "Debt") during the last fiscal quarter of such fiscal year and as of the end of such fiscal year, such demonstration to be in a schedule (in form 10Ksatisfactory to the Majority Lenders) which sets forth the computations used by the Borrower in determining such compliance;
(iv) as soon as available and in any event within 60 days prior to March 31 of each fiscal year, a copy of an operating budget/forecast of operations of the Borrower as approved by the Board of Directors of the Borrower in form satisfactory to the Lenders for the next fiscal year of the Borrower, together with a certificate of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower stating that such budget/forecast was prepared in good faith and on reasonable assumptions;
(v) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any ERISA Plan Termination Event described in clause (i) of the definition of ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (B) within 10 days after the Borrower knows or has reason to know that any other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Plan Termination Event and the action, if Tenant is lawfully required any, which the Borrower proposes to file such a report). If take with respect thereto;
(vi) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the financial documentation required under Section 17.05 is not provided when requiredPBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(vii) promptly and if Tenant fails to furnish the same to Landlord in any event within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business 30 days after receiving a second written request from Landlord the filing thereof with the Internal Revenue Service, copies of each Schedule B (provided both of such notices contain a prominent reference Actuarial Information) to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities Annual Report of the Tenant shall be deemed Borrower (Form 5500 Series) with respect to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements each ERISA Plan (if any) to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises which the recipients of the existence of Landlord’s confidentiality obligation.Borrower is a contributing employer;
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companyParent shall, following the Closing, provide the following to Stockholder:
(1) all unaudited balance sheets, statements of income and expense, cash flows, and Tenant’s applicable quarterly changes in stockholders’ equity, and annual filings clearly set forth the information necessary for Stockholder to determine whether Tenant meets properly and accurately account for Stockholder’s equity interest in the Financial Standard earnings of Parent in connection accordance with GAAP by the periodic determination 7th Business Day after each month-end in the case of whether Tenant meets the Financial Standard, Tenant shall, upon request income statement and by the 10th Business Day in each instance by Landlord, furnish the case of all other information;
(2) direct the Parent’s auditor to Landlord provide to the following: (x) Parent’s Audit Committee required communications under Statement of Auditing Standards No. 61 regarding the audit of the consolidated financial statements of Parent within sixty (60) 45 days after each the end of its first three fiscal quarters during each fiscal year (to commence with the fiscal year ended December 31, 2006);
(3) audited GAAP financial statements as soon as practicable after the end of the Term (and each fiscal year, but in any event within ninety (90) days after the fourth end of the fiscal quarter during year;
(4) unaudited quarterly GAAP financial statements with appropriate narrative commentary describing significant variances as compared to the prior year comparative period within 10 Business Days of each calendar quarter-end, which unaudited GAAP financial information shall be accompanied by an instrument executed by the Chief Financial Officer or President of Parent that certifies that such financials were prepared in accordance with GAAP consistently applied with prior practice and fairly present the financial condition of the Parent, subject to the lack of notes and year-end adjustments;
(5) as soon as practicable, but in any event within 45 days after the commencement of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such months, and as soon as prepared, any other budgets or revised budgets prepared by Parent;
(6) an unaudited financial statement access to (including access by Stockholder’s independent auditors) and cooperation in review of Tenant together with a letter from the chief financial officer books and records of Tenant statingParent, including direction to Parent’s auditors to provide access to audit work papers;
(7) access to the best books and records of his or her knowledge, whether or not Tenant meets Parent to perform periodic impairment studies; and
(8) all other information reasonably related to Stockholder’s satisfaction of its obligations under the Financial Standard (together with a copy applicable reporting rules of the most recently filed United States Securities and Exchange Commission form 10Qon a timely and accurate basis. In regard to (3) above, if Tenant is lawfully required to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating Stockholder reasonably believes that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall Parent will be deemed to be zero until considered significant to Stockholder under SEC reporting guidelines and therefore required to include Parent audited financial statements are provided in accordance Stockholder’s Form 10-K, Stockholder may, with this Section 17.05. Unless public by other meansreasonable notice, Landlord will maintain confidential such statementsrequest that Parent audited financial statements be delivered to Stockholder, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlordfor incorporation into Stockholder’s accountantsForm 10-K, lenders, attorneys and partners, as long as Landlord advises within 53 days after the recipients end of the existence of Landlordfiscal year. To facilitate Parent’s confidentiality obligationability to satisfy the reporting obligations outlined above, Stockholder will make reasonable efforts to compute the Monthly Close Process under the Transition Services Agreement in a timely manner sufficient for Parent to meet its obligations.
Appears in 1 contract
Samples: Merger Agreement (DST Systems Inc)
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid, and Tenant’s applicable quarterly and annual filings clearly set forth any Letter of Credit shall remain outstanding or any Lender shall have any Commitment, the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord each Lender, the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Borrower's quarterly report on Form 10-Q for such quarter), all in reasonable detail and ninety duly certified (90subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit F appropriately completed) of (1) the computations used by the Borrower in determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 9.01(k), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth fiscal quarter during end of each fiscal year of the Borrower and its Subsidiaries, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and its Subsidiaries for such year) an unaudited financial statement , including therein a consolidated balance sheet of Tenant the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year, accompanied by a report thereon of Artxxx Xxdxxxxx & Co. or another nationally-recognized independent public accounting firm, together with a letter schedule in form satisfactory to the Required Lenders of (A) the computations used by such accounting firm in determining, as of the end such fiscal year, compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 9.01(k), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such quarter and statements of income and retained earnings and of cash flows of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(f) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower and (B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower, a statement of the chief financial officer or chief accounting officer of the Borrower describing such Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan;
(h) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;
(i) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is reasonably expected to be liable;
(j) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 7.01(f);
(k) promptly after the sending or filing thereof, copies of all proxy statements, financial statements and reports which the Borrower sends to its public security holders (if any), copies of all regular, periodic and special reports which the Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and copies of all final prospectuses with respect to any securities issued or to be issued by the Borrower or any of its Subsidiaries;
(l) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Borrower or any of its Subsidiaries is a party, which default would materially adversely affect the financial condition, business, results of operations or property of the Borrower and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Borrower setting forth the details of such material default and the action which the Borrower or any such Subsidiary proposes to take with respect thereto; and
(m) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Borrower and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Required Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written time reasonably request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationwriting.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid, and Tenant’s applicable quarterly and annual filings clearly set forth any Letter of Credit shall remain outstanding or any Lender shall have any Commitment, the information necessary to determine whether Tenant meets Borrower will, unless the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent (with sufficient copies for each Lender), the following: :
(xa) as soon as possible and in any event within sixty (60) five days after the Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Borrower, a consolidated balance sheet and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Borrower's quarterly report on Form 10-Q for such quarter), all in reasonable detail and ninety duly certified (90subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP, together with (A) a schedule (substantially in the form of Exhibit F appropriately completed) of (1) the computations used by the Borrower in determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 9.01(k), (2) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (B) a certificate of said officer stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth fiscal quarter during end of each fiscal year of the Borrower and its Subsidiaries, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and its Subsidiaries for such year, including therein a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year, accompanied by a report thereon of Artxxx Xxdxxxxx XXP or another nationally-recognized independent public accounting firm, together with (1) an unaudited a schedule in form satisfactory to the Required Lenders of (A) the computations used by such 52 58 accounting firm in determining, as of the end of such fiscal year, compliance with the covenants contained in Sections 8.01(i) and 8.01(j) and, after the enactment of any Consumers Dividend Restriction, the ratio set forth in Section 9.01(k), (B) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each such Consolidated Subsidiary and (C) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable) to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (A) above, and (2) a certificate of the chief financial officer or chief accounting officer of the Borrower stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower proposes to take with respect thereto;
(d) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, a balance sheet and statements of income and retained earnings and of cash flows of the Borrower as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a balance sheet of the Borrower as at the end of such fiscal year and statements of income and retained earnings and of cash flows of the Borrower for such fiscal year, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Borrower as having been prepared in accordance with GAAP;
(f) as soon as possible and in any event (A) within 30 days after the Borrower knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower and (B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred and could reasonably be expected to result in a material liability to the Borrower, a statement of Tenant together the chief financial officer or chief accounting officer of the Borrower describing such Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a letter trustee appointed to administer any Plan;
(h) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;
(i) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is reasonably expected to be liable;
(j) promptly after the Borrower becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 7.01(f);
(k) promptly after the sending or filing thereof, notice to the Administrative Agent and each Lender of any sending or filing of all proxy statements, financial statements and reports which the Borrower sends to its public security holders (if any), all regular, periodic and special reports which the Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by the Borrower or any of its Subsidiaries;
(l) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Borrower or any of its Subsidiaries is a party, which default would materially adversely affect the financial condition, business, results of operations or property of the Borrower and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Borrower setting forth the details of such material default and the action which the Borrower or any such Subsidiary proposes to take with respect thereto; and
(m) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Borrower and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Required Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report)time reasonably request in writing. If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant The Borrower shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other meanshave fulfilled its obligations pursuant to clauses (b), Landlord will maintain confidential such statements(c), except as required by applicable law or Court order; however Landlord may provide information from such statements (d), (e) and (k) above to Landlord’s accountantsthe extent the Administrative Agent (and the Lenders, lenders, attorneys and partners, as long as Landlord advises the recipients if applicable) receives an electronic copy of the existence requisite document or documents in a format acceptable to the Administrative Agent, provided that (1) an executed, tangible copy of Landlord’s confidentiality obligationany report required pursuant to clause (e) above is delivered to the Administrative Agent at the time of any such electronic delivery, and (2) a tangible copy of each requisite document delivered electronically is made available by the Borrower promptly upon request by any Agent or Lender.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
Reporting Obligations. Unless Tenant is So long as any obligation hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower shall, unless the Majority Lenders shall otherwise consent in writing, furnish or cause to be furnished to the Administrative Agent in sufficient copies for each Lender, the following:
(a) as soon as possible and in any event within ten days after the occurrence of each Event of Default or Unmatured Default continuing on the date of such statement, a public companystatement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower setting forth details of such Event of Default or Unmatured Default and the action that the Borrower proposes to take with respect thereto;
(i) as soon as available, and Tenant’s applicable quarterly and annual filings clearly set forth the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, furnish to Landlord the following: any event within fifty (x) within sixty (60) days after each of its first three fiscal quarters during each fiscal year of the Term (and ninety (9050) days after the fourth fiscal quarter during end of each fiscal year) an unaudited financial statement of Tenant together with a letter from the chief financial officer first three Fiscal Quarters of Tenant statingeach Fiscal Year of the Borrower, to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy of the most recently filed United States Borrower's and each of its Principal Subsidiary's Quarterly Reports on Form 10-Q (if such Principal Subsidiary is required to file such report with the U.S. Securities and Exchange Commission form 10Qpursuant to Sections 13 or 15 of the U.S. Securities Exchange Act of 1934, as amended) submitted to the Securities and Exchange Commission with respect to such quarter, and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is not required to, or ceases to be required to submit such report, consolidated balance sheets of, Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, as of the end of such Fiscal Quarter and consolidated statements of income and retained earnings and of cash flows of such Person for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements; and
(i) concurrently with the delivery of the financial statements described in the foregoing clause (i), a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(A) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements,
(B) stating that no Event of Default or Unmatured Default has occurred and is continuing or, if Tenant an Event of Default or Unmatured Default has occurred and is lawfully continuing, describing the nature thereof and the action that the Borrower proposes to take with respect thereto, and
(C) demonstrating the Borrower's compliance with the covenants set forth in Section 7.03 hereof, for and as of the end of such Fiscal Quarter, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(i) as soon as available, and in any event within 105 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower's and each of its Principal Subsidiary's Annual Reports on Form 10-K (if such Principal Subsidiary is required to file such a report), report with the U.S. Securities and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements Exchange Commission pursuant to Sections 13 or 15 of the Tenant for U.S. Securities Exchange Act of 1934, as amended) submitted to the prior fiscal year (together Securities and Exchange Commission with respect to such Fiscal Year, and, with respect to Yankee, NGC, Select Energy, Inc. and any other Principal Subsidiary that is not required to, or ceases to be required to submit such report, a copy of the most recently filed United States annual audit report for such year for Yankee, NGC, Select Energy, Inc. and such other Principal Subsidiary, including therein consolidated balance sheets of such Person as of the end of such Fiscal Year and consolidated statements of income and retained earnings and of cash flows of such Person, for such Fiscal Year, all in reasonable detail and certified by a nationally-recognized independent public accountant; and
(i) concurrently with the delivery of the financial statements described in the foregoing clause (i), a certificate of the Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(A) to the effect that such financial statements were prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements, and
(B) stating that no Event of Default or Unmatured Default has occurred and is continuing, or if an Event of Default or Unmatured Default has occurred and is continuing, describing the nature thereof and the action that the Borrower proposes to take with respect thereto, and
(C) demonstrating the Borrower's compliance with the covenants set forth in Section 7.03 hereof, for and as of the end of such Fiscal Year, in each case such demonstrations to be in form satisfactory to the Administrative Agent and to set forth in reasonable detail the computations used in determining such compliance;
(d) upon the reasonable request of the Administrative Agent, but not more than once per Fiscal Quarter, copies of any or all filings or registrations with, or notices or reports to, any regulatory authority by the Borrower or any Principal Subsidiary;
(e) as soon as possible and in any event (i) within 30 days after the Chief Financial Officer, Treasurer or any Assistant Treasurer of the Borrower knows or has reason to know that any ERISA Plan Termination Event described in clause (i) of the definition of ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and (ii) within 10 days after the Borrower knows or has reason to know that any other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the Chief Financial Officer, Treasurer or Assistant Treasurer of the Borrower describing such ERISA Plan Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;
(f) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $10,000,000 pursuant to Section 4202 of ERISA in respect of which the Borrower may be liable;
(h) promptly after the Borrower becomes aware of the commencement thereof, notice of all actions, suits, proceedings or other events of the type described in Section 6.01(g) hereof (including, without limitation, any action or proceeding relating to any environmental protection laws or regulations);
(i) promptly after the filing thereof, copies of each prospectus (excluding any prospectus contained in any Form S-8), Current Report on Form 8-K and annual report on Form U5S, if any, which the Borrower or any Principal Subsidiary files with the Securities and Exchange Commission form 10Kor any successor governmental authority; and
(j) promptly after requested, if Tenant is lawfully required to file such a report). If any other information respecting the financial condition, operations, properties or prospects of the financial documentation required under Section 17.05 is not provided when requiredBorrower or its Subsidiaries as the Administrative Agent, and if Tenant fails or the Majority Lenders or Fronting Bank through the Administrative Agent, may from time to furnish the same to Landlord within fifteen (15) days of Landlord’s written time reasonably request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationwriting.
Appears in 1 contract
Reporting Obligations. Unless Tenant is a public companySo long as at least 100 shares of Preferred Stock are outstanding, and Tenant’s applicable quarterly and annual filings clearly set forth so long as Warrants are outstanding under which more than 150,000 shares of Common Stock may be acquired, the information necessary to determine whether Tenant meets the Financial Standard in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlord, Seller shall furnish to Landlord the following: Purchasers, or any other persons who hold any of the Preferred Stock or Warrants (xprovided that such holders give notice to the Seller that they hold Preferred Stock or Warrants and furnish their addresses) promptly upon their becoming available one copy of each report, notice or proxy statement sent by the Seller to its stockholders generally, and of each regular or periodic report (pursuant to the Exchange Act) and any registration statement, prospectus or written communication other than transmittal letters (pursuant to the Securities Act) relating to the Conversion Shares and the Warrant Shares and filed by the Seller with (i) the Commission or (ii) any securities exchange on which shares of Common Stock are listed, provided, however, that the Seller shall not be required to deliver any report filed and available through the SEC's XXXXX website. To the extent that the Seller is no longer required to provide information pursuant to the Exchange Act, the Seller shall provide the Purchasers with (i) within sixty (60) 45 days after the close of each of its first three fiscal quarters during quarter in each fiscal year of the Term Seller an unaudited consolidated balance sheet of the Seller, a consolidated statement of income of the Seller, and a consolidated statement of cash flows of the Seller, as at the end of and for the period commencing at the end of the previous fiscal year and ending with such month, prepared in accordance with GAAP, subject to normal year-end adjustments and complete notes thereto; and (and ninety (90ii) within 90 days after the fourth fiscal quarter during close of each fiscal year) an unaudited financial year then ended of the Seller a consolidated balance sheet of the Seller, a consolidated statement of Tenant together with income of the Seller, and a letter from consolidated statement of cash flows of the chief financial officer Seller, as at the end of Tenant statingand for the fiscal year then ended, setting forth the corresponding figures of the previous fiscal year in comparative form, and certified (without any qualification or exception reasonably deemed material by the Purchasers, other than a qualification as to the best of his or her knowledge, whether or not Tenant meets the Financial Standard (together with a copy going-concern status of the most recently filed United States Securities and Exchange Commission form 10Q, if Tenant is lawfully required to file such a report), and (ySeller or the unavailability of Xxxxxx Xxxxxxxx LLP) within one hundred fifty (150) days after each of Tenant’s fiscal years during by the Term audited financial statements independent certified public accountants of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report). If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other means, Landlord will maintain confidential such statements, except as required by applicable law or Court order; however Landlord may provide information from such statements to Landlord’s accountants, lenders, attorneys and partners, as long as Landlord advises the recipients of the existence of Landlord’s confidentiality obligationSeller.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Spectrum Pharmaceuticals Inc)
Reporting Obligations. Unless Tenant is a public companySo long as any Loan or any other amount payable hereunder or under any Promissory Note shall remain unpaid, and Tenant’s applicable quarterly and annual filings clearly set forth any Letter of Credit shall remain outstanding or any Lender shall have any Commitment, the information necessary to determine whether Tenant meets Company will, unless the Financial Standard Required Lenders shall otherwise consent in connection with the periodic determination of whether Tenant meets the Financial Standard, Tenant shall, upon request in each instance by Landlordwriting, furnish to Landlord the Administrative Agent (for delivery to each Lender), the following: :
(xa) as soon as possible and in any event within sixty (60) five days after any Borrower knows or should have reason to know of the occurrence of each Default or Event of Default continuing on the date of such statement, a statement of the chief financial officer or chief accounting officer of the Company setting forth details of such Default or Event of Default and the action that the Borrowers propose to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end of each of its the first three fiscal quarters during of each fiscal year of the Term Company, commencing with the fiscal quarter ending on June 30, 2005, (i) a consolidated balance sheet and ninety consolidated statements of income and retained earnings and of cash flows of the Company and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (90which requirement shall be deemed satisfied by the delivery of the Company's quarterly report on Form 10-Q for such quarter), all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of the Company as fairly presenting the financial condition of the Company and its Subsidiaries as at such date and the results of the Company and its Subsidiaries for such periods and having been prepared in accordance with GAAP, (ii) a consolidated balance sheet and consolidated statements of income and retained earnings and of cash flows of Consumers and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by the delivery of the Company's quarterly report on Form 10-Q for such quarter), all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of Consumers as fairly presenting the financial condition of Consumers and its Subsidiaries as at such date and the results of Consumers and its Subsidiaries for such periods and having been prepared in accordance with GAAP, (iii) a schedule (substantially in the form of Exhibit E appropriately completed) of (1) the computations used by the Company in determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j), (2) all Project Finance Debt of the Company and the Consolidated Subsidiaries, together with the Company's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrowers of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable), to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (iv) a certificate of the chief financial officer or chief accounting officer of the Company stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrowers propose to take with respect thereto;
(c) as soon as available and in any event within 120 days after the fourth end of each fiscal year of the Company, commencing with the fiscal year ending on December 31, 2005, a copy of the Annual Report on Form 10-K (or any successor form) for the Company and its Subsidiaries for such year, including therein (i) a consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of the Company and its Subsidiaries for such fiscal year, accompanied by a report thereon of a nationally-recognized independent public accounting firm, and (ii) a consolidated balance sheet of Consumers and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of Consumers and its Subsidiaries for such fiscal year, accompanied by a report thereon of a nationally-recognized independent public accounting firm, together with (iii) a schedule (substantially in the form of Exhibit E appropriately completed) of (1) the computations used by such accounting firm in determining, as of the end of such fiscal year, compliance with the covenants contained in Sections 8.01(i) and 8.01(j), (2) all Project Finance Debt of the Company and the Consolidated Subsidiaries, together with the Company's Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations of the Borrowers of the types described in clauses (iv) and (v) of the definition of Support Obligations (whether or not each such Support Obligation or the primary obligation so supported is fixed, conclusively determined or reasonably quantifiable), to the extent such Support Obligations have not been previously disclosed as "Consolidated Debt" pursuant to clause (1) above, and (iv) a certificate of the chief financial officer or chief accounting officer of the Company stating that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrowers propose to take with respect thereto;
(d) as soon as available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Enterprises, commencing with the fiscal quarter during ending on June 30, 2005, a consolidated balance sheet and consolidated statements of income and retained earnings and of cash flows of Enterprises and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or chief accounting officer of Enterprises as fairly presenting the financial condition of Enterprises and its Subsidiaries as at such date and the results of Enterprises and its Subsidiaries for such periods and having been prepared in accordance with GAAP;
(e) as soon as available and in any event within 120 days after the end of each fiscal year of Enterprises, commencing with the fiscal year ending on December 31, 2005, a consolidated balance sheet of Enterprises and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and retained earnings and of cash flows of Enterprises and its Subsidiaries for such fiscal year, all in reasonable detail and duly certified by the chief financial officer or chief accounting officer of Enterprises as fairly presenting the financial condition of Enterprises and its Subsidiaries as at such date and the results of Enterprises and its Subsidiaries for the period ended on such date and having been prepared in accordance with GAAP;
(f) an unaudited financial as soon as possible and in any event (A) within 30 days after the Company knows or has reason to know that any Plan Termination Event described in clause (i) of the definition of Plan Termination Event with respect to any Plan of the Company or any ERISA Affiliate of the Company has occurred and could reasonably be expected to result in a material liability to the Company and (B) within 10 days after the Company knows or has reason to know that any other Plan Termination Event with respect to any Plan of the Company or any ERISA Affiliate of the Company has occurred and could reasonably be expected to result in a material liability to the Company, a statement of Tenant together the chief financial officer or chief accounting officer of the Company describing such Plan Termination Event and the action, if any, which the Company proposes to take with respect thereto;
(g) promptly after receipt thereof by the Company or any of its ERISA Affiliates from the PBGC, copies of each notice received by the Company or any such ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a letter trustee appointed to administer any Plan;
(h) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan (if any) to which the Company is a contributing employer;
(i) promptly after receipt thereof by the Company or any of its ERISA Affiliates from a Multiemployer Plan sponsor, a copy of each notice received by the Company or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Company is reasonably expected to be liable;
(j) promptly after the Company becomes aware of the occurrence thereof, notice of all actions, suits, proceedings or other events of the type described in Section 7.01(f);
(k) promptly after the sending or filing thereof, notice to the Administrative Agent and each Lender of any sending or filing of all proxy statements, financial statements and reports which the Company sends to its public security holders (if any), all regular, periodic and special reports which the Company files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or with any national securities exchange, pursuant to the Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by the Company or any of its Subsidiaries;
(l) as soon as possible and in any event within five days after the occurrence of any material default under any material agreement to which the Company or any of its Subsidiaries is a party, which default would materially adversely affect the business, property, financial condition, results of operations or prospects of the Company and its Subsidiaries, considered as a whole, any of which is continuing on the date of such certificate, a certificate of the chief financial officer of Tenant statingthe Company setting forth the details of such material default and the action which the Company or any such Subsidiary proposes to take with respect thereto; and
(m) promptly after requested, to such other information respecting the best of his business, properties, condition or her knowledgeoperations, whether financial or not Tenant meets the Financial Standard (together with a copy otherwise, of the most recently filed United States Securities Company and Exchange Commission form 10Q, if Tenant is lawfully required its Subsidiaries as any Agent or the Required Lenders may from time to file such a report), and (y) within one hundred fifty (150) days after each of Tenant’s fiscal years during the Term audited financial statements of the Tenant for the prior fiscal year (together with a copy of the most recently filed United States Securities and Exchange Commission form 10K, if Tenant is lawfully required to file such a report)time reasonably request in writing. If any of the financial documentation required under Section 17.05 is not provided when required, and if Tenant fails to furnish the same to Landlord within fifteen (15) days of Landlord’s written request therefor, and if Tenant has not cured such failure within five (5) business days after receiving a second written request from Landlord (provided both of such notices contain a prominent reference to this Section in bold print stating that the failure to provide such financial statements shall result in a default under this Lease), then Tenant shall be in default under this Lease and the unrestricted cash, cash equivalent and marketable securities of the Tenant The Company shall be deemed to be zero until financial statements are provided in accordance with this Section 17.05. Unless public by other meanshave fulfilled its obligations pursuant to clauses (b), Landlord will maintain confidential such statements(c), except as required by applicable law or Court order; however Landlord may provide information from such statements (d), (e), (j) and (k) above to Landlord’s accountantsthe extent the Administrative Agent (and the Lenders, lenders, attorneys and partners, as long as Landlord advises the recipients if applicable) receives an electronic copy of the existence requisite document or documents in a format reasonably acceptable to the Administrative Agent, provided that a tangible copy of Landlord’s confidentiality obligationeach requisite document delivered electronically is made available by the Company promptly upon request by any Agent or Lender.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
