This excerpt taken from the SWY 8-K filed Jun 7, 2005.
8.1 Financial Statements and Other Reports.
Each Borrower shall maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company shall deliver to Administrative Agent and Lenders:
(i) Quarterly Financials: As soon as available and in any event within 45 days after the close of each of the first three fiscal quarters in each fiscal year of Company, to the extent prepared to comply with SEC requirements, a copy of Companys report on SEC Form 10-Q filed with the SEC for such fiscal quarter, or, if no such Form 10-Q was filed by Company, the unaudited consolidated condensed balance sheet of Company and its Subsidiaries as at the end of such fiscal quarter, the related unaudited consolidated condensed statements of income of Company and its Subsidiaries for such fiscal quarter and for the elapsed portion of the fiscal year ended as of the end of such fiscal quarter and the related unaudited consolidated condensed statement of cash flows of Company and its Subsidiaries for the elapsed portion of the fiscal year ended as of the end of such fiscal quarter, in each case setting forth the comparative consolidated figures for the corresponding periods in the prior fiscal year of Company or, in the case of such consolidated balance sheet, for the last day of the corresponding fiscal quarter in the prior fiscal year of Company, all of which shall be certified by the chief financial officer of Company as fairly presenting the consolidated financial condition of Company and its Subsidiaries at the respective dates indicated and the results of their consolidated operations and cash flows for each of the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(ii) Year-End Financials: as soon as available and in any event within 90 days after the end of each Fiscal Year, to the extent prepared to comply with SEC
requirements, a copy of Companys report on SEC Form 10-K filed with the SEC for such fiscal year, or, if no such Form 10-K was filed by Company, the consolidated balance sheet of Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, stockholders equity and cash flows of Company and its Subsidiaries for such Fiscal Year, in each case setting forth the comparative figures for the previous Fiscal Year and certified by independent certified public accountants of recognized national standing selected by Company and satisfactory to Primary Agents, whose opinion shall be unqualified as to the scope of audit or as to the ability of Company and its Subsidiaries to continue as a going concern and shall state that such consolidated financial statements fairly present the consolidated financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iii) Officers and Compliance Certificates: together with each delivery of financial statements of Company and its Subsidiaries pursuant to subdivisions (i) and (ii) above, (a) an Officers Certificate of Company stating that the signers have reviewed the terms of this Agreement and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as at the date of such Officers Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in subsections 9.1 and 9.2;
(iv) Pricing Level Determination Certificates: (a) together with each delivery of financial statements of Company and its Subsidiaries pursuant to subdivisions (i) and (ii) above, (b) within one Business Day after any public release by Fitch, S&P, or Moodys lowering its credit rating on any of Companys outstanding senior unsecured Indebtedness to the extent such lowering would change the Pricing Level then in effect, and (c) at such additional times as Company may elect, a Pricing Level Determination Certificate.
(v) Accountants Certification: together with each delivery of consolidated financial statements of Company and its Subsidiaries pursuant to subdivision (ii) above, a written statement by the independent certified public accountants giving the report thereon (a) stating that their audit has included a review of the terms of this Agreement insofar as they relate to financial and accounting matters and (b) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default or Potential Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period of
existence thereof; provided that such accountants shall not be liable by reason of any failure to obtain knowledge of any such Event of Default or Potential Event of Default that would not be disclosed in the course of their audit;
(vi) SEC Filings and Earnings Releases: promptly upon their becoming available, copies of (a) annual reports and proxy statements sent or made available by Company to its security holders or by any Subsidiary of Company to its security holders other than Company or another Subsidiary of Company, (b) all reports and registration statements of Company or its Subsidiaries filed with the SEC on SEC Forms S-2, S-3, S-4, 10-Q and 8-K and (c) all press releases concerning Companys earnings made available generally by Company or any of its Subsidiaries to the public;
(vii) Events of Default, etc.: promptly upon any executive officer, the vice president-treasurer or the vice president-corporate accounting of any Borrower obtaining knowledge (a) of any condition or event that constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender has given any notice (other than to any Primary Agent) or taken any other action with respect to a claimed Event of Default or Potential Event of Default, or (b) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officers Certificate specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Potential Event of Default, default, event or condition, and what action such Borrower has taken, is taking and proposes to take with respect thereto;
(viii) Litigation or Other Proceedings: promptly upon any executive officer of any Borrower obtaining knowledge of (a) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting Company or any of its Subsidiaries or any property of Company or any of its Subsidiaries (collectively, Proceedings) not previously disclosed in writing by any Borrower to Lenders or (b) any material development in any Proceeding, that, in either case, has a reasonable possibility of giving rise to a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to Borrowers to enable Lenders and their counsel to evaluate such matters; and
(ix) Other Information: with reasonable promptness, such other information and data with respect to Company or any of its Subsidiaries as from time to time may be reasonably requested by any Lender.
Information required to be delivered pursuant to subdivisions (i), (ii), and (vi) of this subsection 8.1 (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date (a) on which Company provides notice to Lenders that such information has been posted on Companys Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge; or (b) on which such documents are posted on
Companys behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); provided that: (y) Company shall deliver paper copies of such information to any Lender that requests such delivery and (z) Company shall notify Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.