Reporting Requirements; Notices. The Borrower shall deliver or cause to be delivered to the Administrative Agent on behalf of the Lenders the following (in a sufficient number of copies to permit distribution to each Lender): (a) Approved Annual Operating Business Plan. No later than 15 days prior to (or 31 days after, with respect to fiscal years 1998 and 1999) the end of each fiscal year of the Borrower and until the first fiscal year ending after the date on which EBITDA is greater than zero for two successive fiscal quarters, a proposed annual operating business plan containing the statements listed in items (i) through (vi) in this paragraph and the exhibits contained in the annual operating business plan delivered pursuant to Section 8.12 for the next-succeeding fiscal year. The proposed annual operating business plan shall contain: (i) internally prepared statements of income and expense of the Borrower and its Subsidiaries in reasonable detail for the applicable period prepared in all material aspects in accordance with GAAP (except for the absence of footnotes), (ii) a schedule of all Capital Expenditures estimated to be made during the period, (iii) a statement of the amounts and times by which the Borrower and its Subsidiaries need to raise additional capital to meet their obligations when due during the period, (iv) projected balance sheets of the Borrower and its Subsidiaries, (v) projected cash flow statements of the Borrower and its Subsidiaries, and (vi) a statement listing material assumptions which formed the basis for (i) through (v), each together with supporting schedules in sufficient detail as needed and in all material aspects in accordance with the Approved Annual Operating Business Plan delivered pursuant to Section 8.12 and on a consistent basis.
Appears in 2 contracts
Samples: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Reporting Requirements; Notices. The Borrower Grand Parent or the ------------------------------- Borrower, as appropriate, shall deliver or cause to be delivered to the Administrative Agent on behalf of the Lenders the following (in a sufficient number of copies to permit distribution to each Lender):
(a) Approved Annual Operating Business Plan. No later than 15 10 days prior to (or 31 days after, with respect to fiscal years 1998 and 1999) after the end of each fiscal year of the Borrower and until the first fiscal year ending after the date on which EBITDA is greater than zero for two successive fiscal quarters, a proposed annual operating business plan Bor rower an Annual Operating Business Plan containing the statements information listed in items (i) through (vi) in this paragraph and the exhibits contained in the annual operating business plan Annual Operating Business Plan delivered pursuant to Section 8.12 8.11(a) for the next-succeeding fiscal year. The proposed annual operating business plan Annual Operating Business Plan shall contain:
(i) internally prepared statements of income and expense of the Borrower and its Subsidiaries in reasonable detail for the applicable period prepared in all material aspects in accordance with GAAP (except for the absence of footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made during the period,
(iii) a statement of the amounts and times by which the Borrower and its Subsidiaries need needs to raise additional capital to meet their its obligations when due during the period,
(iv) a projected balance sheets sheet of the Borrower and its SubsidiariesBorrower,
(v) a projected cash flow statements statement of the Borrower and its SubsidiariesBorrower, and
(vi) a statement listing all material assumptions which formed the basis for all information provided pursuant to clauses (i) through (v), each together with supporting schedules in sufficient detail as needed and in all material aspects in accordance with the Approved Annual Operating Business Plan delivered pursuant to Section 8.12 8.11(a) and on a consistent basis.
(b) No later than August 14 of each fiscal year of the Borrower, a report, certified as true and correct by the chief or principal financial or accounting officer of the Borrower, that shows in reasonable detail, variances, if any, between the actual operating performance of the Borrower and what was estimated for the first six months of such fiscal year in the Annual Operating Business Plan for such fiscal year and explains in reasonable detail in form satisfactory to the Required Secured Creditors the reasons for the discrepancies between them, if any.
(i) As soon as practicable, but in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, copies of the internally prepared unaudited consolidated balance sheet of the Borrower, as at the end of such quarter, and the related consolidated statement of income and statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and each setting forth in comparative form
(A) the figures for the prior year's corresponding fiscal quarter and
(B) any variances from the Annual Operating Business Plan, prepared in all material respects in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower on the date thereof (subject to normal year-end adjustments).
(ii) As soon as practicable, but in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of Grand Parent, copies of the internally prepared unaudited consolidated balance sheet of Grand Parent, as at the end of such quarter, and the related consolidated statement of income and statement of cash flow for the portion of Grand Parent's fiscal year then elapsed, all in reasonable detail, prepared in all material respects in accordance with GAAP, together with a certification by the principal financial or accounting officer of Grand Parent that the information contained in such financial statements fairly presents the financial position of Grand Parent on the date thereof (subject to normal year-end adjustments).
(i) As soon as practicable, but in any event no later than 90 days after the end of each fiscal year (commencing with the fiscal year ended December 31, 1997) of the Borrower, the audited consolidated balance sheet of the Borrower as at the end of such year, and the related audited consolidated statement of income and audited consolidated statement of cash flow for such year prepared in accordance with GAAP, and a separate variance analysis setting forth in comparative form the figures for the previous fiscal year and any variances from the applicable period of the Annual Operating Business Plan in reasonable detail. Such balance sheet, statement of income and statement of cash flow shall contain a certified audit report of a nationally recognized independent certified public accounting firm satisfactory to the Administrative Agent and the Lenders, which report shall contain an unqualified opinion of such accounting firm. The annual financial statements shall also be accompanied by a management letter of the Borrower's accountants (only to the extent otherwise obtained by the Borrower).
(ii) As soon as practicable, but in any event no later than 90 days after the end of each fiscal year (commencing with the fiscal year ended December 31, 1997) of Grand Parent, the audited consolidated balance sheet of Grand Parent as at the end of such year, and the related audited consolidated statement of income and audited consolidated statement of cash flow for such year prepared in accordance with GAAP. Such balance sheet shall contain a certified audit report of a nationally recognized independent certified public accounting firm satisfactory to the Administrative Agent and the Lenders, which report shall contain an unqualified opinion of such accounting firm. The annual financial statements shall also be accompanied by a management letter of Grand Parent's accountants (only to the extent otherwise obtained by Grand Parent).
(e) Simultaneously with the delivery of the financial statements referred to in subsections (c) and (d) above, a statement certified by the principal financial or accounting officer of Grand Parent or the Borrower, as the case may be, substantially in the form of Exhibit D setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 7.19, in each case with respect to the fiscal quarter relating to the financial statements then being delivered.
(f) Within 45 days after the end of each fiscal quarter of the Borrower, a report on
(i) the number of cell sites constructed,
(ii) the total number of Subscribers,
(iii) the average net revenue per subscriber,
(iv) payments to Parent, Grand Parent and other Affiliates of Grand Parent, whether under the Expense Allocation Agreement or other wise and
(v) equity contributions to and Indebtedness incurred by the Borrower or any of its Subsidiaries, and the Persons providing the same, during such fiscal quarter, together with a report showing variances from the estimates previously provided to the Administrative Agent and each Lender in the Annual Operating Business Plan, along with an explanation of discrepancies between the actual numbers and the estimated numbers.
(g) Within three Business Days after the filing or mailing thereof, copies of all
(i) material filed with the Securities and Exchange Commission by any Omnipoint Loan Party;
(ii) information sent to the stockholders of any Omnipoint Loan Party or lenders to any Omnipoint Loan Party (exclusive of proprietary information); or
(iii) information and reports directly and materially related to the Borrower or the New York PCS Network that Parent or Grand Parent would be required to file with the Securities and Exchange Commission pursuant to the Exchange Act, if Parent or Grand Parent were public companies subject to the reporting requirements of such Act; provided that, if the -------- information or reports covered by this clause (iii) contain proprietary information, the Borrower shall not be obligated to provide the proprietary information hereunder unless the Person that is the source of the information or reports is required to file periodic reports with the Securities and Exchange Commission pursuant to the Exchange Act and such Person would be required to report such information as part of such filings.
(h) Within three Business Days after any director or officer of any Omnipoint Loan Party shall have knowledge of the occurrence and continuance thereof, written notice of the occurrence and continuance of a Default, together with a statement of what action Grand Parent, the Borrower or such Omnipoint Loan Party is taking or proposes to take with respect thereto. If any Person shall give any notice or take any other action in respect of a claimed default (whether or not constituting a Default) under this Agreement or any other note, evidence of indebtedness, indenture or other obligation to which or with respect to which any Omnipoint Loan Party is a party or obligor, whether as principal, guarantor, surety or otherwise, which could result in the party to whom such indebtedness is owed having the right under the documents governing such indebtedness to accelerate such indebtedness, and such acceleration would have a Material Adverse Effect, Grand Parent or the Borrower shall, or shall cause such other Omnipoint Loan Party to, forthwith give written notice thereof to the Administrative Agent, describing the notice or action and the nature of the claimed default.
(i) As soon as possible, and in any event within 10 Business Days
(i) after making any such report, written notice of any violation of any Environmental Law that any Omnipoint Loan Party reports in writing or is reportable by any Omnipoint Loan Party in writing (or for which any written report supplemental to any oral report is made) to any Federal, state or local environmental agency and
(ii) after any Omnipoint Loan Party shall become aware thereof, written notice of any inquiry, proceeding, investigation, or other action, including a notice from any agency of potential environmental liability, or any Federal, state or local environmental agency or board, that, has the potential to (x) materially affect the assets, liabilities, financial condition or operations of any Omnipoint Loan Party or the Liens and security interests for the benefit of the Lenders granted pursuant to the Collateral Documents or (y) result in a Material Adverse Effect.
(j) As soon as possible, and in any event within 10 days after the Grand Parent, Borrower or any ERISA Affiliate knows or has reason to know or believes that any ERISA Affiliate knows or has reason to know or believes that any ERISA Event has occurred, a statement of the chief financial officer of Grand Parent or such ERISA Affiliate describing such ERISA Event, together with any correspondence with, or filings made with, the PBGC or Department of Labor, and the action, if any, which Grand Parent, Borrower or such ERISA Affiliate proposes to take with respect thereto.
(k) Promptly after
(i) filing the same with the Department of Labor or Internal Revenue Service, (A) a copy of its initial actuarial statement required to be submitted under (S) 103(d) of ERISA and Annual Report, Form 5500, with all required attachments, in respect of each Guaranteed Pension Plan, and (B) a notice of all subsequent filings (with copies to be provided upon request of the Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under (S)(S) 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under (S)(S) 4041A, 4202, 4219, 4242, or 4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A) any transaction that could result in the imposition of a penalty under (S) 502(i) of ERISA or an excise tax under (S) 4975 against Borrower, Grand Parent or an ERISA Affiliate; (B) any partial or complete withdrawal from a Multiemployer Plan by any of Borrower, Grand Parent or an ERISA Affiliate; (C) a failure by any of Borrower, Grand Parent or an ERISA Affiliate to make a payment to a Plan required to avoid imposition of a lien under (S) 302 (f) of ERISA; (D) the adoption of an amendment to a Guaranteed Pension Plan requiring the provision of security under (S) 307 of ERISA; or (E) any change in the actuarial assumptions or funding methods used for any Guaranteed Pension Plan, where the effect of such change is to materially increase the unfunded benefit liability or materially reduce the obligation to make periodic contributions.
(l) Within three Business Days after becoming aware of any setoff, claims (including, with respect to the Real Estate, environmental claims), withholdings or other defenses to which any of the Collateral, or the Administrative Agent's or the Lenders' rights with respect to the Collateral, are subject, written notice thereof.
(m) Within 10 days after becoming aware of
(i) any litigation or proceedings threatened in writing or any pending litigation and proceedings affecting Grand Parent or any Significant Subsidiary or to which Grand Parent or any Significant Subsidiary is or becomes a party that could reasonably be expected to have a Material Adverse Effect, written notice thereof (which notice shall include a statement as to the nature and status of the proceedings), or
(ii) any judgment not covered by insurance, final or otherwise, against Grand Parent or any Significant Subsidiary in an amount in excess of $1,000,000, written notice thereof.
(n) Within 100 days after the end of each fiscal year of Grand Parent, beginning with its fiscal year ended December 31, 2000 a report that includes calculations showing in reasonable detail Grand Parent's Excess Cash Flow for such fiscal year, if any, certified as correct by Grand Parent's chief or principal accounting or financial officer.
(o) Within three Business Days after its receipt or dispatch thereof, copies of all material notices and correspondence received from or sent to the FCC relating to the New York PCS Network License.
(p) Not later than 30 days prior to the occurrence thereof, written notice to the Administrative Agent of a change in (i) the business of any Omnipoint Entity, (ii) the location of the Collateral (subject to the provisions of the relevant Collateral Document), or (iii) the location where any Omnipoint Loan Party's books and records are kept.
(q) From time to time upon the reasonable request of the Administrative Agent at the direction of the Required Lenders (but in no event more frequently than once per year), an update of the Full-Term Operating Plan, including projections of the Borrower's performance through the Maturity Date, in reasonable detail and covering matters substantially similar to those covered in the Full-Term Operating Plan delivered on the Closing Date.
(r) Such other information concerning its or any other Omnipoint Loan Party's business, operations or financial condition as shall be reasonably requested by any Lender. Upon the Administrative Agent's receipt of any and all financial and other information furnished by Grand Parent or the Borrower pursuant to this Section 6.13 the Administrative Agent shall promptly deliver copies thereof to each Lender.
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
Reporting Requirements; Notices. The Borrower shall deliver ------------------------------- or cause to be delivered to the Administrative Agent on behalf of the Lenders the following (in a sufficient number of copies to permit distribution to each Lender):
(a) Approved Annual Operating Business Plan. No later than 15 days prior to (or 31 days after, with respect to fiscal years 1998 and 1999) the end of each fiscal year of the Borrower and until the first fiscal year ending after the date on which EBITDA Borrower's EBTDA is greater than zero for two successive fiscal quarters, a proposed annual operating business plan containing the statements listed in items (i) through (vi) in this paragraph and the exhibits contained in the annual operating business plan delivered pursuant to Section 8.12 (S)8.13
(a) for the next-next- succeeding fiscal year. The proposed annual operating business plan shall contain:
contain (i) internally prepared statements of income and expense of the Borrower and its Subsidiaries in reasonable detail for the applicable period prepared in all material aspects in accordance with GAAP (except for the absence of footnotes),
, (ii) a schedule of all Capital Expenditures estimated to be made during the period,
, (iii) a statement of the amounts and times by which the Borrower and its Subsidiaries need needs to raise additional capital to meet their its obligations when due during the period,
, (iv) a projected balance sheets sheet of the Borrower and its Subsidiaries,
Borrower, (v) a projected cash flow statements statement of the Borrower Borrower, and its Subsidiaries, and
(vi) a statement listing material all assumptions which formed the basis for (i) through (v), each together with supporting schedules in sufficient detail as needed and in all material aspects in accordance with the Approved Annual Operating Business Plan delivered pursuant to Section 8.12 (S)8.13(a) and on a consistent basis.
(b) No later than August 14 of each fiscal year of the Borrower, a report, certified as true and correct by the Chief Financial Officer of the Borrower, that shows in reasonable detail, variances, if any, between the actual operating performance of the Borrower and what was estimated for the first six months of such fiscal year in the Approved Annual Operating Business Plan for such fiscal year (or the Approved Full Term Operating Business Plan if the Required Lenders have not approved a plan delivered pursuant to (S)6.14(a) with respect to such fiscal year) and explains in reasonable detail in form satisfactory to the Required Lenders the reasons for the discrepancies between them, if any.
(c) As soon as practicable, but in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, copies of the internally prepared unaudited balance sheet of the Borrower, as at the end of such quarter, and the related statement of income and statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and each setting forth in comparative form
(i) the figures for the prior year's corresponding fiscal quarter and
(ii) so long as the Borrower is required to deliver an operating business plan pursuant to (S)6.14(a), any variances from the Approved Annual Operating Business Plan (or the Approved Full Term Operating Business Plan, if the Required Lenders have not approved a plan delivered pursuant to (S)6.14
(a) with respect to such fiscal year), if any, prepared in all material aspects in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower on the date thereof (subject to year-end adjustments).
(d) As soon as practicable, but in any event no later than 90 days after the end of each fiscal year of the Borrower, the audited balance sheet of the Borrower as at the end of such year, and the related audited statement of income and audited statement of cash flow for such year prepared in accordance with GAAP, and so long as the Borrower is required to deliver an operating business plan pursuant to (S)6.14
(a) a separate variance analysis setting forth in comparative form the figures for the previous fiscal year and any variances from the applicable period of the Approved Annual Operating Business Plan (or the Approved Full Term Operating Business Plan, if the Required Lenders have not approved a plan delivered pursuant to (S)6.14(a) with respect to such fiscal year) in reasonable detail. Such balance sheet, statement of income and statement of cash flow shall contain a certified audit report of a nationally recognized independent certified public accounting firm satisfactory to Administrative Agent, which report shall contain an unqualified opinion of such accounting firm, and an "agreed-upon procedures" report pursuant to which the accountants
(i) review the Borrower's statement that the Borrower is in compliance with the provisions of the Expense Allocation Agreement,
(ii) perform the agreed upon review procedures applicable thereto and
(iii) confirm that in examining the financial statements of the Borrower they have not become aware of any Default with respect to the Expense Allocation Agreement, or, if such accountants shall have obtained knowledge of any then existing Default they shall disclose in such report any such Default; provided that such accountants shall not be liable to the Lenders for failure to -------- obtain knowledge of any Default. The annual financial statements shall also be accompanied by a management letter of the Borrower's accountants (only to the extent otherwise obtained by the Borrower).
(e) Simultaneously with the delivery of the financial statements referred to in subsections (c) and (d) above, a statement certified by the principal financial or accounting officer of the Borrower substantially in the form of Exhibit G setting forth in reasonable detail computations evidencing compliance --------- with the covenants contained in (S)(S)6.10, 6.15 and 7.05, and (if applicable to such fiscal quarter) the absence of an Event of Default under (S)10.01(r), in each case with respect to the fiscal quarter relating to the financial statements then being delivered.
(f) Within 45 days after the end of each fiscal quarter of the Borrower, a report on
(i) the number of cell sites constructed,
(ii) the total number of customers,
(iii) the number of new customers acquired,
(iv) the number of customers who terminated their service,
(v) the average net monthly charges billed to customers (excluding roaming charges),
(vi) aggregate roaming revenue,
(vii) payments to Parent, Grand Parent and other Affiliates of Grand Parent, whether under the Expense Allocation Agreement or otherwise and
(viii) equity contributions to and Subordinated Debt incurred by the Borrower, and the Persons providing the same,
(a) with respect to such fiscal year), along with an explanation of discrepancies between the actual numbers and the estimated numbers.
(g) Within three Business Days after the filing or mailing thereof, copies of all
(i) material filed with the Securities and Exchange Commission by the Borrower, Parent or Grand Parent;
(ii) information sent to the stockholders of the Borrower or lenders to the Borrower (exclusive of proprietary information); or
(iii) information and reports directly and materially related to the Borrower or the New York PCS Network that Parent or Grand Parent would be required to file with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, if Parent or Grand Parent were public companies subject to the reporting requirements of such Act; provided that, -------- if the information or reports covered by this clause (iii) contain proprietary information, the Borrower shall not be obligated to provide the proprietary information hereunder unless
(A) the Person that is the source of the information or reports is a public company and
(B) such Person would then be required to file such proprietary information with the SEC.
(h) Within 45 days after the end of each fiscal quarter of the Borrower an accounts-receivable-aging report.
(i) Within three Business Days after the Borrower shall have knowledge of the occurrence and continuance thereof, written notice of the occurrence and continuance of a Default, together with a statement of what action the Borrower is taking or proposes to take with respect thereto. If any Person shall give any notice or take any other action in respect of a claimed default (whether or not constituting a Default) under this Agreement or any other note, evidence of indebtedness, indenture or other obligation to which or with respect to which the Borrower is a party or obligor, whether as principal, guarantor, surety or otherwise, which could result in the party to whom such indebtedness is owed having the right under its governing documents to accelerate such indebtedness, and such acceleration would have a Material Adverse Effect, the Borrower shall forthwith give written notice thereof to the Administrative Agent, describing the notice or action and the nature of the claimed default.
(j) As soon as possible, and in any event within 10 Business Days
(i) after making any such report, written notice of any violation of any Environmental Law that the Borrower reports in writing or is reportable by such Person in writing (or for which any written report supplemental to any oral report is made) to any federal, state or local environmental agency and
(ii) after the Borrower shall become aware thereof, written notice of any inquiry, proceeding, investigation, or other action, including a notice from any agency of potential environmental liability, or any federal, state or local environmental agency or board, that, has the potential to materially affect the assets, liabilities, financial conditions or operations of the Borrower or the security interests for the benefit of the Lenders pursuant to the Borrower Security Agreement.
(k) As soon as possible, and in any event within 10 days after the Borrower or any ERISA Affiliate knows or has reason to know or believes that any ERISA Affiliate knows or has reason to know or believes that any ERISA Event has occurred, a statement of the chief financial officer of the Borrower or such ERISA Affiliate describing such ERISA Event, together with any correspondence with, or filings made with, the PBGC or Department of Labor, and the action, if any, which the Borrower or such ERISA Affiliate proposes to take with respect thereto.
(l) Promptly after
(i) filing the same with the Department of Labor or Internal Revenue Service, (A) a copy of its initial actuarial statement required to be submitted under (S)103(d) of ERISA and Annual Report, Form 5500, with all required attachments, in respect of each Guaranteed Pension Plan, and (B) a notice of all subsequent filings (with copies to be provided upon request of the Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under (S)(S)302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under (S)(S)4041A, 4202, 4219, 4242, or 4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A) any transaction that could result in the imposition of a penalty under (S)502(i) of ERISA or an excise tax under (S)4975 against the Borrower or an ERISA Affiliate; (B) any partial or complete withdrawal from a Multiemployer Plan by any of the Borrower or an ERISA Affiliate; (C) a failure by any of the Borrower or an ERISA Affiliate to make a payment to a Plan required to avoid imposition of a lien under (S)302(f) of ERISA; (D) the adoption of an amendment to a Guaranteed Pension Plan requiring the provision of security under (S)307 of ERISA; or (E) any change in the actuarial assumptions or funding methods used for any Guaranteed Pension Plan, where the effect of such change is to materially increase the unfunded benefit liability or materially reduce the obligation to make periodic contributions.
(m) Within three Business Days after becoming aware of any setoff, of any claims (including, with respect to the Real Estate, environmental claims), withholdings or other defenses to which any of the Collateral, or the Collateral Agent's, the Administrative Agent's or the Lenders' rights with respect to the Collateral, are subject, written notice thereof.
(n) Within 10 days after becoming aware thereof of
(i) any litigation or proceedings threatened in writing or any pending litigation and proceedings affecting the Borrower or to which the Borrower is or becomes a party that could reasonably be expected to have a Material Adverse Effect (which notice shall include a statement as to the nature and status of the proceedings, or
(ii) any judgment not covered by insurance, final or otherwise, against the Borrower in an amount in excess of $1,000,000, written notice thereof.
(o) Within 120 days after the end of each fiscal year of the Borrower, beginning with its fiscal year ended *, and for so long as any Tranche B Advances are outstanding, a report that includes calculations showing in reasonable detail of the Borrower's Excess Cash Flow for such fiscal year, if any, certified as correct by the Borrower's Chief Financial Officer.
(p) Within three Business Days after its receipt thereof, copies of all material notices and correspondence received from or sent to the FCC relating to the New York PCS Network License.
(q) Not later than 30 days prior to the occurrence thereof, written notice to the Administrative Agent of a change in (i) the business or corporate name of the Borrower or Parent, (ii) the location of the Collateral of the Borrower (subject to (S)6(a) of the Borrower Security Agreement) or (iii) the Borrower's chief executive office or other locations or the location where the Borrower's books and records are kept.
(r) Within 15 Business Days after the end of each fiscal quarter of the Borrower, a report showing the respective aggregate principal amounts of all Indebtedness outstanding as of the last day of such fiscal quarter under each Permitted Loan Agreement (as defined in the Intercreditor Agreement).
(s) Such other information concerning its business, operations or financial condition as shall be reasonably requested. Upon the Administrative Agent's receipt of any and all financial and other information furnished by the Borrower pursuant to this (S)6.14 the Administrative Agent shall promptly deliver copies thereof to each Lender.
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
Reporting Requirements; Notices. The Borrower Grand Parent or the ------------------------------- Borrower, as appropriate, shall deliver or cause to be delivered to the Administrative Agent on behalf of the Lenders the following (in a sufficient number of copies to permit distribution to each Lender):): --------------------------------------------------------------------------- * CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
(a) Approved Annual Operating Business Plan. No later than 15 10 days prior to (or 31 days after, with respect to fiscal years 1998 and 1999) after the end of each fiscal year of the Borrower and until the first fiscal year ending after the date on which EBITDA is greater than zero for two successive fiscal quarters, a proposed annual operating business plan Bor rower an Annual Operating Business Plan containing the statements information listed in items (i) through (vi) in this paragraph and the exhibits contained in the annual operating business plan Annual Operating Business Plan delivered pursuant to Section 8.12 8.11(a) for the next-succeeding fiscal year. The proposed annual operating business plan Annual Operating Business Plan shall contain:
(i) internally prepared statements of income and expense of the Borrower and its Subsidiaries in reasonable detail for the applicable period prepared in all material aspects in accordance with GAAP (except for the absence of footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made during the period,
(iii) a statement of the amounts and times by which the Borrower and its Subsidiaries need needs to raise additional capital to meet their its obligations when due during the period,
(iv) a projected balance sheets sheet of the Borrower and its SubsidiariesBorrower,
(v) a projected cash flow statements statement of the Borrower and its SubsidiariesBorrower, and
(vi) a statement listing all material assumptions which formed the basis for all information provided pursuant to clauses (i) through (v), each together with supporting schedules in sufficient detail as needed and in all material aspects in accordance with the Approved Annual Operating Business Plan delivered pursuant to Section 8.12 8.11(a) and on a consistent basis.
(b) No later than August 14 of each fiscal year of the Borrower, a report, certified as true and correct by the chief or principal financial or accounting officer of the Borrower, that shows in reasonable detail, variances, if any, between the actual operating performance of the Borrower and what was estimated for the first six months of such fiscal year in the Annual Operating Business Plan for such fiscal year and explains in reasonable detail in form satisfactory to the Required Secured Creditors the reasons for the discrepancies between them, if any.
(i) As soon as practicable, but in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, copies of the internally prepared unaudited consolidated balance sheet of the Borrower, as at the end of such quarter, and the related consolidated statement of income and statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and each setting forth in comparative form
(A) the figures for the prior year's corresponding fiscal quarter and
(B) any variances from the Annual Operating Business Plan, prepared in all material respects in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower on the date thereof (subject to normal year-end adjustments).
(ii) As soon as practicable, but in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of Grand Parent, copies of the internally prepared unaudited consolidated balance sheet of Grand Parent, as at the end of such quarter, and the related consolidated statement of income and statement of cash flow for the portion of Grand Parent's fiscal year then elapsed, all in reasonable detail, prepared in all material respects in accordance with GAAP, together with a certification by the principal financial or accounting officer of Grand Parent that the information contained in such financial statements fairly presents the financial position of Grand Parent on the date thereof (subject to normal year-end adjustments).
(i) As soon as practicable, but in any event no later than 90 days after the end of each fiscal year (commencing with the fiscal year ended December 31, 1997) of the Borrower, the audited consolidated balance sheet of the Borrower as at the end of such year, and the related audited consolidated statement of income and audited consolidated statement of cash flow for such year prepared in accordance with GAAP, and a separate variance analysis setting forth in comparative form the figures for the previous fiscal year and any variances from the applicable period of the Annual Operating Business Plan in reasonable detail. Such balance sheet, statement of income and statement of cash flow shall contain a certified audit report of a nationally recognized independent certified public accounting firm satisfactory to the Administrative Agent and the Lenders, which report shall contain an unqualified opinion of such accounting firm. The annual financial statements shall also be accompanied by a management letter of the Borrower's accountants (only to the extent otherwise obtained by the Borrower).
(ii) As soon as practicable, but in any event no later than 90 days after the end of each fiscal year (commencing with the fiscal year ended December 31, 1997) of Grand Parent, the audited consolidated balance sheet of Grand Parent as at the end of such year, and the related audited consolidated statement of income and audited consolidated statement of cash flow for such year prepared in accordance with GAAP. Such balance sheet shall contain a certified audit report of a nationally recognized independent certified public accounting firm satisfactory to the Administrative Agent and the Lenders, which report shall contain an unqualified opinion of such accounting firm. The annual financial statements shall also be accompanied by a management letter of Grand Parent's accountants (only to the extent otherwise obtained by Grand Parent).
(e) Simultaneously with the delivery of the financial statements referred to in subsections (c) and (d) above, a statement certified by the principal financial or accounting officer of Grand Parent or the Borrower, as the case may be, substantially in the form of Exhibit D setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 7.19, in each case with respect to the fiscal quarter relating to the financial statements then being delivered.
(f) Within 45 days after the end of each fiscal quarter of the Borrower, a report on
(i) the number of cell sites constructed,
(ii) the total number of Subscribers,
(iii) the average net revenue per subscriber,
(iv) payments to Parent, Grand Parent and other Affiliates of Grand Parent, whether under the Expense Allocation Agreement or other wise and
(v) equity contributions to and Indebtedness incurred by the Borrower or any of its Subsidiaries, and the Persons providing the same, during such fiscal quarter, together with a report showing variances from the estimates previously provided to the Administrative Agent and each Lender in the Annual Operating Business Plan, along with an explanation of discrepancies between the actual numbers and the estimated numbers.
(g) Within three Business Days after the filing or mailing thereof, copies of all
(i) material filed with the Securities and Exchange Commission by any Omnipoint Loan Party;
(ii) information sent to the stockholders of any Omnipoint Loan Party or lenders to any Omnipoint Loan Party (exclusive of proprietary information); or
(iii) information and reports directly and materially related to the Borrower or the New York PCS Network that Parent or Grand Parent would be required to file with the Securities and Exchange Commission pursuant to the Exchange Act, if Parent or Grand Parent were public companies subject to the reporting requirements of such Act; provided that, if the -------- information or reports covered by this clause (iii) contain proprietary information, the Borrower shall not be obligated to provide the proprietary information hereunder unless the Person that is the source of the information or reports is required to file periodic reports with the Securities and Exchange Commission pursuant to the Exchange Act and such Person would be required to report such information as part of such filings.
(h) Within three Business Days after any director or officer of any Omnipoint Loan Party shall have knowledge of the occurrence and continuance thereof, written notice of the occurrence and continuance of a Default, together with a statement of what action Grand Parent, the Borrower or such Omnipoint Loan Party is taking or proposes to take with respect thereto. If any Person shall give any notice or take any other action in respect of a claimed default (whether or not constituting a Default) under this Agreement or any other note, evidence of indebtedness, indenture or other obligation to which or with respect to which any Omnipoint Loan Party is a party or obligor, whether as principal, guarantor, surety or otherwise, which could result in the party to whom such indebtedness is owed having the right under the documents governing such indebtedness to accelerate such indebtedness, and such acceleration would have a Material Adverse Effect, Grand Parent or the Borrower shall, or shall cause such other Omnipoint Loan Party to, forthwith give written notice thereof to the Administrative Agent, describing the notice or action and the nature of the claimed default.
(i) As soon as possible, and in any event within 10 Business Days
(i) after making any such report, written notice of any violation of any Environmental Law that any Omnipoint Loan Party reports in writing or is reportable by any Omnipoint Loan Party in writing (or for which any written report supplemental to any oral report is made) to any Federal, state or local environmental agency and
(ii) after any Omnipoint Loan Party shall become aware thereof, written notice of any inquiry, proceeding, investigation, or other action, including a notice from any agency of potential environmental liability, or any Federal, state or local environmental agency or board, that, has the potential to (x) materially affect the assets, liabilities, financial condition or operations of any Omnipoint Loan Party or the Liens and security interests for the benefit of the Lenders granted pursuant to the Collateral Documents or (y) result in a Material Adverse Effect.
(j) As soon as possible, and in any event within 10 days after the Grand Parent, Borrower or any ERISA Affiliate knows or has reason to know or believes that any ERISA Affiliate knows or has reason to know or believes that any ERISA Event has occurred, a statement of the chief financial officer of Grand Parent or such ERISA Affiliate describing such ERISA Event, together with any correspondence with, or filings made with, the PBGC or Department of Labor, and the action, if any, which Grand Parent, Borrower or such ERISA Affiliate proposes to take with respect thereto.
(k) Promptly after
(i) filing the same with the Department of Labor or Internal Revenue Service, (A) a copy of its initial actuarial statement required to be submitted under (S) 103(d) of ERISA and Annual Report, Form 5500, with all required attachments, in respect of each Guaranteed Pension Plan, and (B) a notice of all subsequent filings (with copies to be provided upon request of the Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or demand sent or received in respect of a Guaranteed Pension Plan under (S)(S) 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under (S)(S) 4041A, 4202, 4219, 4242, or 4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A) any transaction that could result in the imposition of a penalty under (S) 502(i) of ERISA or an excise tax under (S) 4975 against Borrower, Grand Parent or an ERISA Affiliate; (B) any partial or complete withdrawal from a Multiemployer Plan by any of Borrower, Grand Parent or an ERISA Affiliate; (C) a failure by any of Borrower, Grand Parent or an ERISA Affiliate to make a payment to a Plan required to avoid imposition of a lien under (S) 302 (f) of ERISA; (D) the adoption of an amendment to a Guaranteed Pension Plan requiring the provision of security under (S) 307 of ERISA; or (E) any change in the actuarial assumptions or funding methods used for any Guaranteed Pension Plan, where the effect of such change is to materially increase the unfunded benefit liability or materially reduce the obligation to make periodic contributions.
(l) Within three Business Days after becoming aware of any setoff, claims (including, with respect to the Real Estate, environmental claims), withholdings or other defenses to which any of the Collateral, or the Administrative Agent's or the Lenders' rights with respect to the Collateral, are subject, written notice thereof.
(m) Within 10 days after becoming aware of
(i) any litigation or proceedings threatened in writing or any pending litigation and proceedings affecting Grand Parent or any Significant Subsidiary or to which Grand Parent or any Significant Subsidiary is or becomes a party that could reasonably be expected to have a Material Adverse Effect, written notice thereof (which notice shall include a statement as to the nature and status of the proceedings), or
(ii) any judgment not covered by insurance, final or otherwise, against Grand Parent or any Significant Subsidiary in an amount in excess of $1,000,000, written notice thereof.
(n) Within 100 days after the end of each fiscal year of Grand Parent, beginning with its fiscal year ended [*] a report that includes calculations showing in reasonable detail Grand Parent's Excess Cash Flow for such fiscal year, if any, certified as correct by Grand Parent's chief or principal accounting or financial officer.
(o) Within three Business Days after its receipt or dispatch thereof, copies of all material notices and correspondence received from or sent to the FCC relating to the New York PCS Network License.
(p) Not later than 30 days prior to the occurrence thereof, written notice to the Administrative Agent of a change in (i) the business of any Omnipoint Entity, (ii) the location of the Collateral (subject to the provisions of the relevant Collateral Document), or (iii) the location where any Omnipoint Loan Party's books and records are kept.
(q) From time to time upon the reasonable request of the Administrative Agent at the direction of the Required Lenders (but in no event more frequently than once per year), an update of the Full-Term Operating Plan, including projections of the Borrower's performance through the Maturity Date, in reasonable detail and covering matters substantially similar to those covered in the Full-Term Operating Plan delivered on the Closing Date.
(r) Such other information concerning its or any other Omnipoint Loan Party's business, operations or financial condition as shall be reasonably requested by any Lender. Upon the Administrative Agent's receipt of any and all financial and other information furnished by Grand Parent or the Borrower pursuant to this Section 6.13 the Administrative Agent shall promptly deliver copies thereof to each Lender.
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
Reporting Requirements; Notices. The Borrower shall ------------------------------- deliver or cause to be delivered to the Administrative Agent on behalf of the Lenders the following (in a sufficient number of copies to permit distribution to each Lender):
(a) Approved Annual Operating Business Plan. No later than 15 days prior to (or 31 days after, with respect to fiscal years 1998 and 1999) the end of each fiscal year of the Borrower and until the first fiscal year ending after the date on which EBITDA EBTDA is greater than zero for two successive fiscal quarters, a proposed annual operating business plan containing the statements listed in items (i) through (vi) in this paragraph and the exhibits contained in the annual operating business plan delivered pursuant to Section 8.12 (S)8.13
(a) for the next-next- succeeding fiscal year. The proposed annual operating business plan shall contain:
(i) internally prepared statements of income and expense of the Borrower and its Subsidiaries in reasonable detail for the applicable period prepared in all material aspects in accordance with GAAP (except for the absence of footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made during the period,
(iii) a statement of the amounts and times by which the Borrower and its Subsidiaries need to raise additional capital to meet their obligations when due during the period,
(iv) projected balance sheets of the Borrower and its Subsidiaries,
(v) projected cash flow statements of the Borrower and its Subsidiaries, and
(vi) a statement listing material all assumptions which formed the basis for (i) through (v), each together with supporting schedules in sufficient detail as needed and in all material aspects in accordance with the Approved Annual Operating Business Plan delivered pursuant to Section 8.12 (S)8.13(a) and on a consistent basis.
(b) No later than August 14 of each fiscal year of the Borrower, beginning with its 1998 fiscal year, a report, certified as true and correct by the chief or principal financial or accounting officer of the Borrower, that shows in reasonable detail, variances, if any, between the actual operating performance of the Borrower and its Subsidiaries and what was estimated for the first six months of such fiscal year in the Approved Annual Operating Business Plan for such fiscal year (or the Approved Full Term Operating Business Plan if the Required Lenders have not approved a plan delivered pursuant to (S)6.14(a) with respect to such fiscal year) and explains in reasonable detail in form satisfactory to the Required Lenders the reasons for the discrepancies between them, if any.
(c) As soon as practicable, but in any event not later than 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, copies of the internally prepared unaudited Consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such quarter and related Consolidated statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal quarter and ending with the end of such fiscal quarter, and Consolidated and consolidating statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year of the Borrower and ending with the end of such quarter, all in reasonable detail and each setting forth in comparative form:
(i) the figures for the prior year's corresponding fiscal quarter, and
(ii) so long as the Borrower is required to deliver an annual operating business plan pursuant to (S)6.14(a), any variances from the Approved Annual Operating Business Plan (or the Approved Full Term Operating Business Plan, if the Required Lenders have not approved a plan delivered pursuant to (S)6.14
(a) with respect to such fiscal year), if any, prepared in all material aspects in accordance with GAAP, together with a certification by the principal or chief financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments).
(d) As soon as practicable, but in any event no later than 90 days after the end of each fiscal year of the Borrower, the audited Consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements of income and the audited Consolidated statement of cash flows of the Borrower and its Subsidiaries for such year prepared in accordance with GAAP, and so long as the Borrower is required to deliver an annual operating business plan pursuant to (S)6.14
(a) a separate variance analysis setting forth in comparative form the figures for the previous fiscal year and any variances from the applicable period of the Approved Annual Operating Business Plan (or the Approved Full Term Operating Business Plan, if the Required Lenders have not approved a plan delivered pursuant to (S)6.14(a) with respect to such fiscal year) in reasonable detail. Such balance sheets, statements of income and statement of cash flows shall contain a certified audit report of a nationally recognized independent certified public accounting firm satisfactory to the Administrative Agent, which report shall contain an unqualified opinion of such accounting firm, and an "agreed-upon procedures" report pursuant to which the accountants:
(i) review the Borrower's statement that the Borrower is in compliance with the provisions of the Expense Allocation Agreement,
(ii) perform the agreed upon review procedures applicable thereto, and
(iii) confirm that in examining the financial statements of the Borrower and its Subsidiaries they have not become aware of any Default with respect to the Expense Allocation Agreement, or, if such accountants shall have obtained knowledge of any then existing Default they shall disclose in such report any such Default; provided that such accountants shall not be liable to the Lenders for -------- failure to obtain knowledge of any Default. The annual financial statements shall also be accompanied by a management letter of the Borrower's accountants (only to the extent otherwise obtained by the Borrower).
(e) Simultaneously with the delivery of the financial statements referred to in subsections (c) and (d) above,
(i) a statement certified by the chief or principal financial or accounting officer of the Borrower, in form and substance satisfactory to the Administrative Agent, setting forth in reasonable detail computations evidencing compliance with the covenants contained in (S)(S) 6.15 and 7.05, and, if in making the calculations required to be made pursuant to (S)6.15(b), the Borrower would not be in compliance with such covenant but for the inclusion therein of amounts under (S)6.15
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
