Reports and Other Information (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC (and provide the Trustee and Holders with copies thereof, without cost to each Holder, within 15 days after it files them with the SEC):
(i) within the time period specified in the SEC’s rules and regulations, annual reports on Form 10-K (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form),
(ii) within the time period specified in the SEC’s rules and regulations, reports on Form 10-Q (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form),
(iii) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time period specified in the SEC’s rules and regulations), such other reports on Form 8-K (or any successor or comparable form), and
(iv) any other information, documents and other reports which the Issuer would be required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act; provided, however, that the Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to prospective purchasers of Securities, including by posting such reports on the primary website of the Issuer or its Subsidiaries in addition to providing such information to the Trustee and the Holders, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act, it being understood that the Trustee shall have no responsibility whatsoever to determine whether any filings have been made with the SEC or reports have been posted on such website.
(b) In the event that:
(i) the rules and regulations of the SEC permit the Issuer and any direct or indirect parent of the Issuer to report at such parent entity’s level on a consolidated basis, and
(ii) such parent entity of the Issuer is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Capital Stock of the Issuer, such consolidated reporting at such parent entity’s level in a manner consistent with that described in this Section 4.02 for the Issuer shall satisfy this Section 4.02.
(c) The Issuer shall make such information available to prospective investors upon request. In addition, the Issuer shall, for so long as any Securities remain outstanding during any period when it is not subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the Holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Notwithstanding the foregoing, the Issuer will be deemed to have furnished such reports referred to above to the Trustee and the Holders if the Issuer has filed such reports with the SEC via the EXXXX filing system and such reports are publicly available; provided, however, that the Trustee shall have no responsibility whatsoever to determine whether or not the Issuer has made such filing.
(a) So long as the Parent Guarantee is in effect, or (b) in the event that any direct or indirect parent of the Issuer is or becomes a guarantor of the Guaranteed Obligations, the Issuer may satisfy its obligations under this Section 4.02 with respect to financial information relating to the Issuer by furnishing financial information relating to the Parent Guarantor, or to such direct or indirect parent, as applicable; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to the Parent Guarantor, or to such direct or indirect parent, and any of their respective Subsidiaries other than the Issuer and its Subsidiaries, on the one hand, and the information relating to the Issuer, the Subsidiary Guarantors and the other Subsidiaries of the Issuer on a standalone basis, on the other hand. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates with respect thereto).
Financial and Other Information The Company will keep, and will cause its Subsidiaries to keep, proper books of record and account in accordance with GAAP consistently applied throughout the periods covered in which full and true entries will be made of all dealings or transactions relating to their business and affairs, and the Company shall cause to be furnished to each Warrant Holder for so long such Warrant Holder holds any Warrant or Warrant Shares:
(i) As soon as practicable and in any event within thirty (30) days after the end of each month, including the month of March, June, September and December (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such month and the year-to-date period, and an unaudited consolidated balance sheet of the Company as of the end of such month, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, (B) in comparative form, figures for the actual results for the corresponding month and year-to-date periods in the immediately preceding fiscal year and amounts projected for such month pursuant to Section 10(a)(iv), and (iii) a copy of the monthly Credit Review Alert Report;
(ii) Within forty-five (45) days after the end of each Fiscal Quarter including the fourth (4th) Fiscal Quarter, (A) unaudited consolidated statements of income, retained earnings and cash flows of the Company for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and unaudited consolidated balance sheets of the Company as of the end of such Fiscal Quarter, all of which statements and balance sheets shall be in reasonable detail, prepared in accordance with GAAP (except for normal adjustments and accruals and the lack of footnotes and other presentation items) consistent with past practice, and certified as accurate by the Chief Financial Officer of the Company, and (B) in comparative form, figures for the actual results for the corresponding periods in the immediately preceding Fiscal Year and amounts projected for such periods pursuant to Section 10(a)(iv), together with a written report (or such SEC Report which shall contain the same information) providing explanations of any material variances and any material variances in connection with the Projections covering such Fiscal Quarter;
(iii) Within ninety (90) days after the end of each Fiscal Year, (A) audited consolidated statements of income, retained earnings and cash flows of the Company for such year, and consolidated balance sheets of the Company as of the end of such year, setting forth in each case, in comparative form, corresponding figures for the period covered by the preceding annual audit and as of the end of the preceding Fiscal Year, all of which statements and balance sheets shall be in reasonable detail and satisfactory in scope to the Warrant Holders and prepared by the Company and audited by Xxxxxxx, Xxxxxxx & Xxxxxxxx, CPAs, or another respected firm of independent certified public accountants selected by the Company and reasonably satisfactory to the Warrant Holders, whose opinion shall be unqualified and shall be prepared in accordance with GAAP and generally accepted auditing standards, (B) such accountants’ comment letter on the Company’s internal financial or accounting systems or controls which shall be issued as well as copies of all other reports submitted by the Company’s accountants; and the Company agrees that they shall request such a comment letter to be prepared in connection with each audit, (C) a written report (which may include a SEC Report that contains the same information) providing explanations of any material variances from the previous Fiscal Year and any material variances in connection with the Projections covering the previous Fiscal Year, and (D) the certification of the Chief Financial Officer of the Company that all such Financial Statements present fairly in accordance with GAAP the financial position, results of operations and statements of cash flows of the Company and its consolidated Subsidiaries on a consolidated basis, as at the end of such Fiscal Year;
(iv) As soon as practicable and in any event before November 30 of each year, a Budget and Projections for each month of the next succeeding fiscal year (including a statement of underlying assumptions) for the Company, in the same format as the financial statements provided pursuant to Section 10(a)(i) and Section 10(a)(ii);
(v) If the Company shall otherwise prepare or have available financial statements and other information for the Company and its Subsidiaries on a consolidated basis, or shall provide their Governing Bodies (as applicable) with any financial information not otherwise provided for herein, they shall also furnish the same to the Warrant Holders in addition to the financial statements and other information for the Company and its Subsidiaries required to be furnished pursuant to the foregoing provisions of this Section 10(a);
(vi) When available, (A) all significant reports or written communications submitted to the Company or any of its Subsidiaries by its accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems, including any comment letters (or drafts thereof) delivered to management and all responses thereto, and (B) unless disclosed in SEC Reports, acquisition analyses for material acquisitions, presentations to lenders, financial institutions or potential investors, consultants’ reports relating to the Company and/or its Subsidiaries;
(vii) Promptly, with copies of all amendments, consent letters, waivers or modifications to, and any material notices or reports provided by any Person to the Company or any of its Subsidiaries pursuant to the terms of or in connection with, any Purchaser Document or any Subsidiary articles, operating agreement or bylaws, or by the Company or any of its Subsidiaries to any such Person;
(viii) Promptly, upon obtaining knowledge thereof, but in no event less than 5 Business Days prior to the occurrence of any Put Event; and
(ix) From time to time, such additional information regarding the business, properties, financial position, results of operations, or prospects of the Company or any of its subsidiaries as the Warrant Holder (or Initial Holder) may request; provided that the Company shall not be required to deliver information and notices under this Section 10(a) if the Warrant Holder (or Initial Holder) is receiving the same information and notices as a Purchaser under the Note and Warrant Purchase Agreement.
Conflicting Agreements and Other Matters Neither the Company nor any of its Subsidiaries is a party to any contract or agreement or subject to any charter or other corporate restriction which materially and adversely affects its business, property or assets, or financial condition. Neither the execution nor delivery of this Agreement or the Notes, nor the offering, issuance and sale of the Notes, nor fulfillment of nor compliance with the terms and provisions hereof and of the Notes will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under, or result in any violation of, or result in the creation of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries pursuant to, the charter or by-laws of the Company or any of its Subsidiaries, any award of any arbitrator or any agreement (including any agreement with stockholders), instrument, order, judgment, decree, statute, law, rule or regulation to which the Company or any of its Subsidiaries is subject. Neither the Company nor any of its Subsidiaries is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of the Company or such Subsidiary, any agreement relating thereto or any other contract or agreement (including its charter) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of the Company of the type to be evidenced by the Notes except as set forth in the agreements listed in Schedule 8G attached hereto.
Marshalling and Other Matters Borrower hereby waives, to the extent permitted by law, the benefit of all appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale hereunder of the Property or any part thereof or any interest therein. Further, Borrower hereby expressly waives any and all rights of redemption from sale under any order or decree of foreclosure of this Security Instrument on behalf of Borrower, and on behalf of each and every person acquiring any interest in or title to the Property subsequent to the date of this Security Instrument and on behalf of all persons to the extent permitted by applicable law.
Documents and Other Materials I will keep and maintain adequate and current records of all Proprietary Information and Company-Related Developments developed by me during my employment, which records will be available to and remain the sole property of the Company at all times. All files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, program listings, blueprints, models, prototypes, or other written, photographic or other tangible material containing Proprietary Information, whether created by me or others, which come into my custody or possession, are the exclusive property of the Company to be used by me only in the performance of my duties for the Company. Any property situated on the Company’s premises and owned by the Company, including without limitation computers, disks and other storage media, filing cabinets or other work areas, is subject to inspection by the Company at any time with or without notice. In the event of the termination of my employment for any reason, I will deliver to the Company all files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, program listings, blueprints, models, prototypes, or other written, photographic or other tangible material containing Proprietary Information, and other materials of any nature pertaining to the Proprietary Information of the Company and to my work, and will not take or keep in my possession any of the foregoing or any copies.
Financial and Other Statements 6.4.1. Promptly upon receipt thereof, GCB will furnish to OFC copies of each annual, interim or special audit of the books of GCB and the GCB Subsidiaries made by its independent auditors and copies of all internal control reports submitted to GCB by such auditors in connection with each annual, interim or special audit of the books of GCB and the GCB Subsidiaries made by such auditors.
6.4.2. As soon as reasonably available, but in no event later than the date such documents are filed with the SEC, GCB will notify OFC and make available to OFC the Securities Documents filed by it with the SEC under the Securities Laws. GCB will furnish to OFC copies of all documents, statements and reports as it or any GCB Subsidiary shall send to its shareholders, the FDIC, the FRB, the Department or any other regulatory authority, except as legally prohibited thereby. Within 25 days after the end of each month, GCB will deliver to OFC a consolidated balance sheet and a consolidated statement of income, without related notes, for such month prepared in accordance with current financial reporting practices.
6.4.3. GCB will advise OFC promptly of the receipt of any examination report of any Bank Regulator with respect to the condition or activities of GCB or any of the GCB Subsidiaries.
6.4.4. With reasonable promptness, GCB will furnish to OFC such additional financial data that GCB possesses and as OFC may reasonably request, including without limitation, detailed monthly financial statements and loan reports.
Litigation and Other Notices Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of the Company obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;
(b) the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against any Loan Party or any Subsidiary as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;
(c) any other development specific to any Loan Party or any Subsidiary that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect;
(d) the development of any ERISA Event that, together with all other ERISA Events that have developed or occurred, would reasonably be expected to have a Material Adverse Effect; and
(e) any change in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification.
Financial Reports and Other Information (a) The Parent will maintain a system of accounting in accordance with GAAP and will furnish to the Banks and their respective duly authorized representatives such information respecting the business and financial condition of the Parent and its Subsidiaries as any Bank may reasonably request; and without any request, the Parent will furnish each of the following to each Bank:
(i) within 60 days after the end of each of the first three quarterly fiscal periods of the Parent, a copy of the Parent's Form 10-Q Report filed with the SEC;
(ii) within 90 days after the end of each fiscal year of the Parent, a copy of the Parent's Form 10-K Report filed with the SEC, prepared by the Parent and containing or including as an exhibit thereto the Parent's financial statements for such fiscal year as certified by independent public accountants of recognized national standing selected by the Parent in accordance with GAAP with such accountants' unqualified opinion to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial position of the Parent and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(iii) within the period provided in subsection (ii) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default with respect to Sections 7.11, 7.15, 7.16, and 7.17 or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(iv) promptly after the sending or filing thereof, copies of all proxy statements, financial statements and reports the Parent sends to its shareholders, and copies of all other regular, periodic and special reports and all registration statements the Parent files with the SEC or any successor thereto, or with any national securities exchanges; and
(v) within 90 days after the beginning of each fiscal year of the Parent an operating budget for the Parent and its Subsidiaries for such fiscal year of the Parent.
(b) Each financial statement furnished to the Banks pursuant to subsection (i) or (ii) of this Section 7.6 shall be accompanied by a Compliance Certificate signed by the Parent's chief financial officer, treasurer or controller showing the Parent's compliance with the covenants set forth in Sections 7.14(k), 7.15, 7.16, and 7.17 hereof.
(c) The Parent will promptly (and in any event within three Business Days after any of the President, chief executive officer, chief financial officer, chief operating officer, treasurer, assistant treasurer, or controller of the Parent has knowledge thereof) give notice to the Administrative Agent:
(i) of the occurrence of any Change of Control, Default or Event of Default;
(ii) of any default or event of default under any Contractual Obligation of the Parent or any of its Subsidiaries, except for a default or event of default which is not reasonably expected to have a Material Adverse Effect;
(iii) of the occurrence of an event or condition which would reasonably be expected to result in a Material Adverse Effect; and
(iv) of any litigation or governmental proceeding of the type described in Section 5.5 hereof.
Financial and Other Reports 6 (A) Owner/IRS Relationship. Owner is required to file all required Internal Revenue Service (IRS) 7 forms and meet all IRS requirements. Owner agrees to provide Broker with appropriate IRS forms (e.g., W-9) 8 before any funds are disbursed to Owner.
Regulatory and Other Approvals (a) Subject to the terms and conditions of this Agreement and without limiting the provisions of Annex C, the Company will proceed diligently and in good faith to, as promptly as practicable, (i) obtain all consents, approvals or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities (including state securities commissions) or any other public or private third parties required of the Company or any of its Subsidiaries to consummate the Offer and the other matters contemplated hereby, and (ii) provide such other information and communications to such Governmental or Regulatory Authorities or other public or private third parties as the other party or such Governmental or Regulatory Authorities or other public or private third parties may reasonably request in connection therewith. The Holders shall cooperate with the Company as it may reasonably request in connection with the Company's satisfaction of its obligations under this paragraph (a).
(b) Subject to the terms and conditions of this Agreement and without limiting the provisions of Annex C, each Holder will proceed diligently and in good faith to, as promptly as practicable, (i) obtain all consents, approvals or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities (including state securities commissions) or any other public or private third parties required of such Holder or any of its Subsidiaries to consummate the Offer and the other matters contemplated hereby, and (ii) provide such other information and communications to such Governmental or Regulatory Authorities or other public or private third parties as the other party or such Governmental or Regulatory Authorities or other public or private third parties may reasonably request in connection therewith. The Company shall cooperate with each Holder as it may reasonably request in connection with such Holder's satisfaction of its obligations under this paragraph (b).
